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songer_district | G | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Robert L. MELVILLE, Plaintiff-Appellant, v. CUYAHOGA COUNTY BOARD OF ELECTIONS, Defendant-Appellee.
No. 71-2004.
United States Court of Appeals, Sixth Circuit.
June 28, 1972.
Raymond T. Sawyer, III, Thompson, Hiñe & Flory, Cleveland, Ohio, for plaintiff-appellant.
John L. Dowling, Asst. Pros. Atty., Cleveland, Ohio, for defendant-appellee; John T. Corrigan, Pros. Atty., Cuyahoga County, Cleveland, Ohio, on brief.
Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
PER CURIAM.
This is an appeal from the dismissal of the plaintiff’s (the parties will be referred to as in the court below) complaint challenging the charter provisions of the City of Rocky River, Ohio, which require that the Mayor of the City shall have been a qualified elector and resident for at least three years prior to the date of his election. The complaint recites that on August 4, 1971, Ira N. For-man (Forman), age 19, a resident of Rocky River for more than three years, but a qualified elector for less than three years, filed a declaration of his candidacy for the office of Mayor of Rocky River in the Democratic Primary Election scheduled for September, 1971. He had complied with the charter provisions relating to the necessity for signatures. On August 6, the Board of Elections advised Forman that his name would not be on the ballot because he had not been a qualified elector for three years.
Plaintiff filed this action claiming that the provisions of the charter of the City of Rocky River requiring that a candidate must have been an elector for three years before election violated his Civil Rights and the Equal Protection Clause contained in Amendment 14 to the Constitution of the United States because he was denied the right to vote for the candidate of his choice. The action was dismissed by the District Court by an order entered September 9, 1971.
At the time of the argument of the case in this Court it was conceded by counsel for the plaintiff that the primary and general elections for 1971 had been held (without the benefit of For-man’s candidacy). The prayer for relief of the complaint did not request a declaratory judgment, 28 U.S.C.A. § 2201, but requested an injunction to restrain the enforcement of the electorship requirement and to require that Forman be reinstated as a candidate on the Democratic Primary ballot for the office of Mayor of Rocky River. At the time of the hearing in the District Court counsel for the plaintiff stated to the District Judge that Forman was enrolled as a sophomore at Harvard University: On these facts and because of the limited nature of the prayer for relief in the complaint, this Court concludes that the issues presented in this cause are moot.
The appeal is dismissed.
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_r_bus | 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 "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.
UNITED STATES of America, Appellant, v. Alden D. STANTON and Louise M. Stanton, Appellees.
No. 279, Docket 26665.
United States Court of Appeals Second Circuit.
Argued March 9, 1961.
Decided March 23, 1961.
Wayne G. Barnett, Department of Justice, Washington, D. C., Malvern Hill, Jr., Asst. U. S. Atty., Brooklyn, N. Y. (Abbott M. Sellers, Acting Asst. Atty. Gen., and Lee A. Jackson and James P. Turner, Dept, of Justice, Washington, D. C., and Cornelius W. Wickersham, Jr., U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellant.
Clendon H. Lee, New York City (John C. Farber, William F. Snyder, Theodore Q. Childs and O’Connor & Farber, New York City, on the brief), for appellees.
Before LUMBARD, Chief Judge, and MAGRUDER and WATERMAN, Circuit Judges.
Sitting by designation.
PER CURIAM.
We are here called upon once more to review the finding by the district court that payments in the amount of $20,000, made to Alden D. Stanton in 1942 and 1943 by the Corporation of Trinity Church in New York City, were a gift and therefore not taxable as gross income under § 22 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 22. The original determination by the district court was reversed by this court. 2 Cir., 1959, 268 F.2d 727. That decision was vacated and the case remanded to the district court by the Supreme Court of the United States for “new and adequate” findings of fact. C. I. R. v. Duberstein, 1960, 363 U.S. 278, 80 S.Ct. 1190, 1201, 4 L.Ed.2d 1218.
Judge Byers then made detailed findings regarding all the relevant facts and concluded again that the payments to Stanton were a gift. D.C.E.D. N.Y.1960, 186 F.Supp. 393. The mandate of the Supreme Court requires us to review the district court’s inferences drawn from its fact findings by the “clearly erroneous” standard of Federal Rules of Civil Procedure 52(a), 28 U.S.C.A., 363 U.S. at page 291, 80 S.Ct. at page 1200. We have reviewed, in the light of the Supreme Court decision, all the prior proceedings and the findings made by the district court. We cannot say that Judge Byers’ careful and detailed findings and conclusions are clearly erroneous, and accordingly we affirm the judgment of the district court.
Chief Judge Lumbard concurs in this result because of the directive of the Supreme Court that appellate review be “quite restricted,” 363 U.S. at page 290, 80 S.Ct. at page 1199, although he is of the opinion that the contrary inference should have been drawn from the undisputed basic facts for the reasons set forth in the majority opinion of Judge Hand at 268 F.2d 727.
Judgment affirmed.
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 | 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".
Bennie W. AGEE, Administrator of the Estate of M. Louise Agee, Deceased, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
No. 9441.
United States Court of Appeals Tenth Circuit.
May 29, 1968.
Carl E. Moslander, Oklahoma City, Okl., for appellant.
Glenn H. Grubb, Oklahoma City, Okl. (David R. Dickey and Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, Okl., of counsel, on the brief), for appellee.
Before MARVIN JONES Judge, Court of Claims, and LEWIS and BREITENSTEIN, Circuit Judges.
Sitting by designation.
BREITENSTEIN, Circuit Judge.
The action in the district court was in the nature of garnishment to require appellee-defendant, The Travelers Indemnity Company, to pay a judgment for $21,632 obtained in Oklahoma state court against Chester Lee Sullivan for negligence which resulted in the death of M. Louise Agee. Appehant-plaintiff Bennie Agee is the administrator of the estate of Louise Agee. The district court denied recovery and this appeal followed.
Bennie and Louise were husband and wife until a final decree of divorce was entered a few days before her death. On July 3, 1963, Travelers issued a family automobile policy to B. W. Agee, the same person as Bennie W. Agee, covering a. 1963 Chevrolet and a 1956 Buick. Bennie and Louise separated on June 21, 1964, with Bennie moving out of the family-home and taking the children with him. On the basis of a renewal statement signed by Bennie, Travelers issued a renewal policy which was mailed to Bennie on May 5, 1964, and which was to become effective on July 3, 1964. No changes were made in the policy.
Divorce proceedings were begun on July 6, 1964. A divorce decree was entered on August 14, 1964. The decree awarded the 1956 Buick to Louise. On August 15, 1964, Louise traded the Buick for a 1964 Oldsmobile. On August IT she returned the Oldsmobile to the garage from which she had purchased it for repairs. She did not have another car to' drive, and the garage loaned her a 1959 Chevrolet. On August 19, Louise was a passenger in the 1959 Chevrolet which, was being driven by Sullivan with her consent. An accident occurred and Louise was killed.
Bennie as administrator sued Sullivan and others for the death of Louise. Sullivan requested Travelers to defend on the ground that he was covered by the July 3 renewal policy of Travelers. Travelers refused to defend. Bennie obtained a judgment against Sullivan which was not satisfied. Bennie then brought the instant garnishment action against Travelers in federal district court.
If Louise was a named insured in the policy, Sullivan was covered because the 1959 Chevrolet would come within the definition of “owned automobile” and because Sullivan was driving with the permission of Louise. The policy defines “named insured” to mean “any individual named in Item 1 of the declarations and also includes his spouse, if a resident of the same household.” Item 1 of the declarations reads that the named insured is B. W. Agee. At the end of the line provided for Item 2, which states the policy period, are two asterisks. Near the lower right-hand corner of the declarations page is a box. At the top of the box, in the same'print as the policy form appears, “ ** 12:01 A.M., standard time at the address of the named insured as stated herein.” Typed in below that are the names B. W. Agee and M. Louise. Each name is followed by numbers, which under the undisputed testimony show the birth date of each and the number of the Oklahoma driver’s license held by each. Below this is the name of the insurance agency. The claim is that the inclusion of the name of Louise in the box makes her a named insured.
A witness for Travelers testified that the typed information in the box was for underwriting purposes. The dates disclosed the ages of those regularly driving the automobiles and the license numbers furnished the means for checking traffic violations. He explained that the printed phrase following the two asterisks was to call attention to the fact that the period of policy coverage was determined by standard time prevailing at the address of the named insured.
Bennie argues that the inclusion of the name of Louise in the box creates a patent ambiguity which must be resolved against the insurer because it wrote the policy. We do not agree. The asterisks refer to Item 2 — not to Item 1 which clearly gives the name of the person insured. Nothing in the policy indicates any intent to expand the “named insured” by the inclusion of any names in the box. Although no explanation for the appearance of the name of Louise in the box appears in the policy, the lack of explanation does not create an ambiguity. So far as the insuring contract is concerned, the inclusion of the names in the box is surplusage and does not extend the coverage.
Counsel say that Bennie asked for and received a family policy to cover both himself and his wife and both cars. The 1956 Buick *Hvas paid for from a joint bank account to which Louise had not contributed for several years. It was licensed in the name of Louise. The 1963 Chevrolet was licensed in the name of Bennie. Travelers concedes that as long as Louise was the spouse of Bennie and lived in his household she was a named insured. When Bennie moved out of the family home with the children and established another household, she was no longer a named insured but was covered because she was driving an “owned automobile” within the policy terms with the consent of Bennie. This situation changed with the divorce decree which awarded the Buick to Louise. Bennie was no longer in a situation to grant permission for the use of the Buick and did not grant any permission to Sullivan.
Bennie seeks a judicial reformation of the policy to include Louise as a named insured. In Oklahoma there can be no reformation of a contract unless there is an antecedent agreement by which to make the rectification and the evidence must be sufficient to take the question out of the range of reasonable controversy because the court cannot make a new or different contract for the parties. Bennie wanted and received coverage for himself and his wife and for the two cars. When the policy came up for renewal he requested no change. The only possibility of mistake arises after the separation. Bennie testified, and the insurance agent admitted, that after the separation he called the agent and told him of the separation and of his move to another home. He did not request a policy change and the agent made none because the coverage continued. The situation changed after the divorce. Bennie testified that in a second telephone conversation with the agent he reported that he and Louise were getting a divorce and he wanted the coverage on the Buick continued. The agent testified that after the conversation relating to the separation, he had no other conversation with Bennie until after the accident. The trial judge stated specifically that he adopted the testimony of the agent and found that the agent had no notice either of the divorce or of the trade of the Buick for the Oldsmobile until after the accident. In the circumstances there was no antecedent agreement on which reformation can be based. We are not concerned with what the responsibilities of Travelers might have been if the agent had known of the divorce.
In May, 1965, Travelers made a $500 medical payment under the policy to Bennie as administrator of the estate of Louise. Bennie argues that because of this payment Travelers is estopped to deny coverage. Before the payment Travelers had investigated the accident and denied liability. The agent who made the payment testified that he did so mistakenly and without reviewing the file. The district court found that the payment was made “in error and by mistake.”
Counsel for Bennie rely on Security Ins. Co. of New Haven v. White, 10 Cir., 236 F.2d 215, and Cochran v. Order of United Commercial Travelers, 10 Cir., 143 F.2d 82. The cases are not in point. Neither relates to a mistake and in each there was detrimental reliance by the insured on the conduct of the insurer.
The elements of equitable estoppel under Oklahoma law are set out in Antrim Lumber Co. v. Wagner, 175 Okl. 564, 54 P.2d 173, 176. They include knowledge and detrimental reliance. In St. Louis & S.F.R. Co. v. Mann, 79 Okl. 160, 192 P. 231, 233, it was said that estoppel cannot be set up against a party “whose conduct was based upon pure mistake.” Here the record shows, and the court found, that the medical payment was made by mistake. The evidence shows no reliance by Bennie on the payment which might have been a detriment to him. The district court correctly found no detrimental reliance and correctly concluded that under Oklahoma law no estoppel arose.
Affirmed.
. See Dennis v. American-First Title & Trust Company, Okl., 405 P.2d 993, 997, and Douglas v. Douglas, 176 Okl. 378, 56 P.2d 362, 369.
. See Continental Oil Company v. Rapp, Okl., 301 P.2d 198, 203, and Fipps v. Stidham, 174 Okl. 473, 50 P.2d 680, 684.
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: |
sc_casedisposition | E | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
Gregory WELCH, Petitioner
v.
UNITED STATES.
No. 15-6418.
Supreme Court of the United States
Argued March 30, 2016.
Decided April 18, 2016.
Amir H. Ali, Washington, DC, for Petitioner.
Michael R. Dreeben, Washington, DC, for the respondent in support of vacatur and remand.
Lindsay C. Harrison, Matthew E. Price, Amir H. Ali, R. Trent McCotter, Joshua M. Parker, Benjamin M. Eidelson, Jenner & Block LLP, Washington, DC, for Petitioner.
Helgi C. Walker, Washington, DC, as amicus curiae, appointed by this Court, in support of the judgment below.
Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Michael A. Rotker, Gwendolyn A. Stamper, Attorneys, Department of Justice, Washington, DC, for the United States.
Justice KENNEDY delivered the opinion of the Court.
Last Term, this Court decided Johnson v. United States, 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
I
Federal law prohibits any felon-meaning a person who has been convicted of a crime punishable by more than a year in prison-from possessing a firearm. 18 U.S.C. § 922(g). A person who violates that restriction can be sentenced to prison for up to 10 years. § 924(a)(2). For some felons, however, the Armed Career Criminal Act imposes a much more severe penalty. Under the Act, a person who possesses a firearm after three or more convictions for a "serious drug offense" or a "violent felony" is subject to a minimum sentence of 15 years and a maximum sentence of life in prison. § 924(e)(1). Because the ordinary maximum sentence for a felon in possession of a firearm is 10 years, while the minimum sentence under the Armed Career Criminal Act is 15 years, a person sentenced under the Act will receive a prison term at least five years longer than the law otherwise would allow.
The Act defines "violent felony" as
"any crime punishable by imprisonment for a term exceeding one year ... that-
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
Subsection (i) of this definition is known as the elements clause. The end of subsection (ii)-"or otherwise involves conduct that presents a serious potential risk of physical injury to another"-is known as the residual clause. See Johnson, supra, at ----, 135 S.Ct., at 2555-2556. It is the residual clause that Johnson held to be vague and invalid.
The text of the residual clause provides little guidance on how to determine whether a given offense "involves conduct that presents a serious potential risk of physical injury." This Court sought for a number of years to develop the boundaries of the residual clause in a more precise fashion by applying the statute to particular cases. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (residual clause covers Florida offense of attempted burglary); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (residual clause does not cover New Mexico offense of driving under the influence of alcohol); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (residual clause does not cover Illinois offense of failure to report to a penal institution); Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (residual clause covers Indiana offense of vehicular flight from a law-enforcement officer). In Johnson, a majority of this Court concluded that those decisions did not bring sufficient clarity to the scope of the residual clause, noting that the federal courts remained mired in "pervasive disagreement" over how the clause should be interpreted. Johnson, 576 U.S., at ----, 135 S.Ct., at 2560.
The Johnson Court held the residual clause unconstitutional under the void-for-vagueness doctrine, a doctrine that is mandated by the Due Process Clauses of the Fifth Amendment (with respect to the Federal Government) and the Fourteenth Amendment (with respect to the States). The void-for-vagueness doctrine prohibits the government from imposing sanctions "under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id., at ----, 135 S.Ct., at 2556. Johnson determined that the residual clause could not be reconciled with that prohibition.
The vagueness of the residual clause rests in large part on its operation under the categorical approach. The categorical approach is the framework the Court has applied in deciding whether an offense qualifies as a violent felony under the Armed Career Criminal Act. See id., at ----, 135 S.Ct., at 2556-2557. Under the categorical approach, "a court assesses whether a crime qualifies as a violent felony 'in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.' " Ibid. (quoting Begay, supra, at 141, 128 S.Ct. 1581 ). For purposes of the residual clause, then, courts were to determine whether a crime involved a "serious potential risk of physical injury" by considering not the defendant's actual conduct but an "idealized ordinary case of the crime." 576 U.S., at ----, 135 S.Ct., at 2561.
The Court's analysis in Johnson thus cast no doubt on the many laws that "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion ." Ibid. The residual clause failed not because it adopted a "serious potential risk" standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. In the Johnson Court's view, the "indeterminacy of the wide-ranging inquiry" made the residual clause more unpredictable and arbitrary in its application than the Constitution allows. Id., at ----, 135 S.Ct., at 2557. "Invoking so shapeless a provision to condemn someone to prison for 15 years to life," the Court held, "does not comport with the Constitution's guarantee of due process." Id., at ----, 135 S.Ct., at 2560.
II
Petitioner Gregory Welch is one of the many offenders sentenced under the Armed Career Criminal Act before Johnson was decided. Welch pleaded guilty in 2010 to one count of being a felon in possession of a firearm. The Probation Office prepared a presentence report finding that Welch had three prior violent felony convictions, including a Florida conviction for a February 1996 "strong-arm robbery." The relevant Florida statute prohibits taking property from the person or custody of another with "the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (1994). The charging document from the 1996 Florida case tracked that statutory language. App. 187a. The 2010 federal presentence report provides more detail. It states that, according to the robbery victim, Welch punched the victim in the mouth and grabbed a gold bracelet from his wrist while another attacker grabbed a gold chain from his neck.
Welch objected to the presentence report, arguing (as relevant here) that this conviction was not a violent felony conviction under the Armed Career Criminal Act. The District Court overruled the objection. It concluded that the Florida offense of strong-arm robbery qualified as a violent felony both under the elements clause, 18 U.S.C. § 924(e)(2)(B)(i), and the residual clause, § 924(e)(2)(B)(ii). The District Court proceeded to sentence Welch to the Act's mandatory minimum sentence of 15 years in prison.
The Court of Appeals for the Eleventh Circuit affirmed. That court did not decide whether the conviction at issue could qualify as a violent felony under the elements clause. Instead, it held only that the conviction qualified under the residual clause. This Court denied certiorari, see Welch v. United States, 568 U.S. ----, 133 S.Ct. 913, 184 L.Ed.2d 702 (2013), and Welch's conviction became final.
In December 2013, Welch appeared pro se before the District Court and filed a collateral challenge to his conviction and sentence through a motion under 28 U.S.C. § 2255. He argued, among other points, that his strong-arm robbery conviction itself was "vague" and that his counsel was ineffective for allowing him to be sentenced as an armed career criminal. The District Court denied the motion and denied a certificate of appealability.
Still proceeding pro se, Welch applied to the Court of Appeals for a certificate of appealability. His application noted that Johnson was pending before this Court. Welch argued, in part, that his "armed career offender status is unconstitutional and violate[s] [his] Fifth Amendment right to notice of the state priors." App. 20a. Two months later, Welch filed a motion asking the Court of Appeals to hold his case in abeyance until Johnson could be decided, "based on the fact he was sentenced under the [residual clause]." App. 15a.
In June 2015, the Court of Appeals entered a brief single-judge order denying the motion for a certificate of appealability. Less than three weeks later, this Court issued its decision in Johnson holding, as already noted, that the residual clause is void for vagueness. Welch filed a motion asking the Court of Appeals for additional time to seek reconsideration of its decision in light of Johnson, but the court returned that motion unfiled because Welch's time to seek reconsideration already had expired.
Welch then filed a pro se petition for certiorari. His petition presented two questions: whether the District Court erred in denying his § 2255 motion because his Florida robbery conviction does not qualify as a violent felony conviction under the Armed Career Criminal Act; and whether Johnson announced a substantive rule that has retroactive effect in cases on collateral review. Pet. for Cert. i. This Court granted the petition. 577 U.S. ----, 136 S.Ct. 790, 193 L.Ed.2d 534 (2016). Because the United States, as respondent, agrees with Welch that Johnson is retroactive, the Court appointed Helgi C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities.
III
A
This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). That standard is met when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability "does not require a showing that the appeal will succeed," and "a court of appeals should not decline the application ...
merely because it believes the applicant will not demonstrate an entitlement to relief." Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive.
B
The normal framework for determining whether a new rule applies to cases on collateral review stems from the plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). That opinion in turn drew on the approach outlined by the second Justice Harlan in his separate opinions in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The parties here assume that the Teague framework applies in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction, and we proceed on that assumption. See Chaidez v. United States, 568 U.S. ----, ----, n. 16, 133 S.Ct. 1103, 1113, n. 16, 185 L.Ed.2d 149 (2013) ; Danforth v. Minnesota, 552 U.S. 264, 269, n. 4, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).
Under Teague, as a general matter, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." 489 U.S., at 310, 109 S.Ct. 1060. Teague and its progeny recognize two categories of decisions that fall outside this general bar on retroactivity for procedural rules. First, "[n]ew substantive rules generally apply retroactively." Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ; see Montgomery v. Louisiana, 577 U.S. ----, ----, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016) ; Teague, supra, at 307, 311, 109 S.Ct. 1060. Second, new " 'watershed rules of criminal procedure,' " which are procedural rules "implicating the fundamental fairness and accuracy of the criminal proceeding," will also have retroactive effect. Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ; see Teague, supra, at 311-313, 109 S.Ct. 1060.
It is undisputed that Johnson announced a new rule. See Teague, supra, at 301, 109 S.Ct. 1060 ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final"). The question here is whether that new rule falls within one of the two categories that have retroactive effect under Teague . The parties agree that Johnson does not fall into the limited second category for watershed procedural rules. Welch and the United States contend instead that Johnson falls into the first category because it announced a substantive rule.
"A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro, 542 U.S., at 353, 124 S.Ct. 2519. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id., at 351-352, 124 S.Ct. 2519 (citation omitted); see Montgomery, supra, at ----, 136 S.Ct., at 728. Procedural rules, by contrast, "regulate only the manner of determining the defendant's culpability." Schriro, 542 U.S., at 353, 124 S.Ct. 2519. Such rules alter "the range of permissible methods for determining whether a defendant's conduct is punishable." Ibid . "They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id., at 352, 124 S.Ct. 2519.
Under this framework, the rule announced in Johnson is substantive. By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering "the range of conduct or the class of persons that the [Act] punishes." Schriro, supra, at 353, 124 S.Ct. 2519. Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that "even the use of impeccable factfinding procedures could not legitimate" a sentence based on that clause. United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). It follows that Johnson is a substantive decision.
By the same logic, Johnson is not a procedural decision. Johnson had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Armed Career Criminal Act. See Schriro, 542 U.S., at 353, 124 S.Ct. 2519. It did not, for example, "allocate decisionmaking authority" between judge and jury, ibid., or regulate the evidence that the court could consider in making its decision, see Whorton v. Bockting, 549 U.S. 406, 413-414, 417, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) ; Mackey, supra, at 700-701, 91 S.Ct. 1160 (opinion of Harlan, J.). Unlike those cases, Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review.
C
Amicus urges the Court to adopt a different understanding of the Teague framework. She contends courts should apply that framework by asking whether the constitutional right underlying the new rule is substantive or procedural. Under that approach, amicus concludes that Johnson is a procedural decision because the void-for-vagueness doctrine that Johnson applied is based, she asserts, on procedural due process.
Neither Teague nor its progeny support that approach. As described above, this Court has determined whether a new rule is substantive or procedural by considering the function of the rule, not its underlying constitutional source. See, e.g., Schriro, supra, at 351-353, 124 S.Ct. 2519.
That is for good reason. The Teague framework creates a balance between, first, the need for finality in criminal cases, and second, the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law. That balance turns on the function of the rule at issue, not the constitutional guarantee from which the rule derives. If a new rule regulates only the procedures for determining culpability, the Teague balance generally tips in favor of finality. The chance of a more accurate outcome under the new procedure normally does not justify the cost of vacating a conviction whose only flaw is that its procedures "conformed to then-existing constitutional standards." Teague, supra, at 310, 109 S.Ct. 1060. On the other hand, if a new rule changes the scope of the underlying criminal proscription, the balance is different. A change of that character will "necessarily carry a significant risk that a defendant stands convicted of 'an act that the law does not make criminal.' " Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ). By extension, where the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest. As Justice Harlan wrote, "[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." Mackey, 401 U.S., at 693, 91 S.Ct. 1160 (opinion of Harlan, J.).
The Teague balance thus does not depend on whether the underlying constitutional guarantee is characterized as procedural or substantive. It depends instead on whether the new rule itself has a procedural function or a substantive function-that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes. See Schriro, supra, at 353, 124 S.Ct. 2519 ; Montgomery, 577 U.S., at ----, 136 S.Ct., at 732-733. The emphasis by amicus on the constitutional guarantee behind the new rule, then, would untether the Teague framework from its basic purpose.
The approach amicus suggests also would lead to results that cannot be squared with prior precedent. Decisions from this Court show that a rule that is procedural for Teague purposes still can be grounded in a substantive constitutional guarantee. For instance, the Court has adopted certain rules that regulate capital sentencing procedures in order to enforce the substantive guarantees of the Eighth Amendment. The consistent position has been that those rules are procedural, even though their ultimate source is substantive. See, e.g., Beard v. Banks, 542 U.S. 406, 408, 416-417, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) ; Sawyer v. Smith, 497 U.S. 227, 233, 241-242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). From the converse perspective, there also can be substantive rules based on constitutional protections that, on the theory amicus advances, likely would be described as procedural. For instance, a decision that invalidates as void for vagueness a statute prohibiting "conduct annoying to persons passing by," cf. Coates v. Cincinnati, 402 U.S. 611, 612, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), would doubtless alter the range of conduct that the law prohibits. That would make it a substantive decision under our precedent, see Schriro, 542 U.S., at 353, 124 S.Ct. 2519 even if the reasons for holding that statute invalid could be characterized as procedural.
Amicus next relies on language from this Court's cases describing substantive decisions as those that "place particular conduct or persons ... beyond the State's power to punish," id., at 352, 124 S.Ct. 2519 or that "prohibi[t] a certain category of punishment for a class of defendants because of their status or offense," Saffle, 494 U.S., at 494, 110 S.Ct. 1257 (internal quotation marks omitted). Cases such as these, in which the Constitution deprives the Government of the power to impose the challenged punishment, "represen[t] the clearest instance" of substantive rules for which retroactive application is appropriate. Mackey, supra, at 693, 91 S.Ct. 1160 (opinion of Harlan, J.). Drawing on those decisions, amicus argues that Johnson is not substantive because it does not limit Congress' power: Congress is free to enact a new version of the residual clause that imposes the same punishment on the same persons for the same conduct, provided the new statute is precise enough to satisfy due process.
Although this Court has put great emphasis on substantive decisions that place certain conduct, classes of persons, or punishments beyond the legislative power of Congress, the Court has also recognized that some substantive decisions do not impose such restrictions. The clearest example comes from Bousley, supra . In Bousley, the Court was asked to determine what retroactive effect should be given to its decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey considered the "use" prong of 18 U.S.C. § 924(c)(1), which imposes increased penalties on the use of a firearm in relation to certain crimes. The Court held as a matter of statutory interpretation that the "use" prong punishes only "active employment of the firearm" and not mere possession. 516 U.S., at 144, 116 S.Ct. 501. The Court in Bousley had no difficulty concluding that Bailey was substantive, as it was a decision "holding that a substantive federal criminal statute does not reach certain conduct." Bousley, supra, at 620, 118 S.Ct. 1604 ; see Schriro, supra, at 354, 124 S.Ct. 2519 ("A decision that modifies the elements of an offense is normally substantive rather than procedural"). The Court reached that conclusion even though Congress could (and later did) reverse Bailey by amending the statute to cover possession as well as use. See United States v. O'Brien, 560 U.S. 218, 232-233, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) (discussing statutory amendment known as the "Bailey fix"). Bousley thus contradicts the contention that the Teague inquiry turns only on whether the decision at issue holds that Congress lacks some substantive power.
Amicus recognizes that Bousley does not fit the theory that, in her view, should control this case. She instead proposes an ad hoc exception, contending that Bousley "recognized a separate subcategory of substantive rules" for decisions that interpret statutes (but not those, like Johnson, that invalidate statutes). Brief for Court-Appointed Amicus Curiae in Support of Judgment Below 40. For support, amicus looks to the separation-of-powers doctrine. Her argument is that statutory construction cases are substantive because they define what Congress always intended the law to mean-unlike Johnson, which struck down the residual clause regardless of Congress' intent.
That argument is not persuasive. Neither Bousley nor any other case from this Court treats statutory interpretation cases as a special class of decisions that are substantive because they implement the intent of Congress. Instead, decisions that interpret a statute are substantive if and when they meet the normal criteria for a substantive rule: when they "alte[r] the range of conduct or the class of persons that the law punishes." Schriro, supra, at 353, 124 S.Ct. 2519.
The separation-of-powers argument that amicus raises is also misplaced. Bousley noted that the separation of powers prohibits a court from imposing criminal punishment beyond what Congress meant to enact. 523 U.S., at 620-621, 118 S.Ct. 1604 ("[I]t is only Congress, and not the courts, which can make conduct criminal"). But a court likewise is prohibited from imposing criminal punishment beyond what Congress in fact has enacted by a valid law. In either case a court lacks the power to exact a penalty that has not been authorized by any valid criminal statute.
Treating decisions as substantive if they involve statutory interpretation, but not if they involve statutory invalidation, would produce unusual outcomes. "It has long been our practice ... before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction." Skilling v. United States, 561 U.S. 358, 405-406, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Amicus acknowledges that a decision that saves a vague statute by adopting a limiting construction is substantive, so anyone who falls outside the limiting construction can use that decision to seek relief on collateral review. But amicus also contends that, if a court takes the further step of striking down the whole statute as vague, that decision is procedural, so no one can use it to seek relief on collateral review. That arbitrary distinction has no place in the Teague framework.
It should be noted, of course, that not every decision striking down a statute is ipso facto a substantive decision. A decision that strikes down a procedural statute-for example, a statute regulating the types of evidence that can be presented at trial-would itself be a procedural decision. It would affect only the "manner of determining the defendant's culpability," not the conduct or persons to be punished. Schriro, 542 U.S., at 353, 124 S.Ct. 2519 (emphasis deleted). A decision of this kind would have no retroactive effect under Teague unless it could be considered a "watershed" procedural rule. See Teague, 489 U.S., at 311-313, 109 S.Ct. 1060. Johnson, however, struck down part of a criminal statute that regulates conduct and prescribes punishment. It thereby altered "the range of conduct or the class of persons that the law punishes." Schriro, supra, at 353, 124 S.Ct. 2519. It follows that Johnson announced a substantive rule that has retroactive effect in cases on collateral review.
* * *
It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch's motion to amend his sentence. For instance, the parties continue to dispute whether Welch's strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson . On the present record, however, and in light of today's holding that Johnson is retroactive in cases on collateral review, reasonable jurists at least could debate whether Welch is entitled to relief. For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer: |
songer_adminrev | G | 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".
LAND et al. v. DOLLAR et al. SAWYER, Secretary of Commerce, v. DOLLAR et al.
No. 10956.
Nos. 10955, 10956.
United States Court of Appeals District of Columbia Circuit.
May 18, 1951.
Gregory A. Harrison and Moses Lasky, San Francisco, Cal., for appellees-petition-ers for sanctions for contempt.
J. Howard McGrath, Atty. Gen. and Holmes Baldridge, Asst. Atty. Gen., for respondents to petition for sanctions for contempt Sawyer, Fleming, Perlman, Ford, Hickey, Clapp, MacGuineas, Angelí and Page. Charles Dickerman Williams, Solicitor, Department of Commerce, New York City, also appeared for respondents Sawyer, Fleming and Page.
Arthur B. Dunne, San Francisco, Cal., for respondent Killion.
Before CLARK, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.
Findings of Fact
1. Asserting that the transfer of shares amounting to 92 percent of the voting control of what is now American President Lines, Ltd., to the United States Maritime Commission, which occurred in 1938, was a pledge to secure indebtedness, and that, the indebtedness having been paid, the pledgors were entitled to have the pledged shares returned to them, the Dollar interests sued the then members of the Maritime Commission to recover possession.
The defense of the members of the Commission was that the 1938 transaction was an outright transfer to the United States and that they held the shares in their official capacities as officers of the government; that the suit was therefore one against the United States to which it had not consented.
The Supreme Court held that the jurisdictional question depended upon the nature of the 1938 transaction: (a) if it was a pledge, the members of the Commission acted tortiously in retaining possession after the indebtedness secured thereby had been discharged, and so could be sued by the Dollar interests for a return of the property; (b) if it was a sale or other absolute transfer of title, the members of the Commission held the shares for the United States as the owner thereof and could not be sued for possession, absent the government’s consent. The Supreme Court directed, therefore, that the lower courts determine the nature of the 1938 transaction, pointing out, however, that, while the determination of the question would settle the issue of possession, a decree that the transaction was a pledge only would not prevent the United States itself from asserting title as the government was not a party to the possessory action. Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209.
Subsequently, on July 17, 1950, this court held the transaction of 1938 was a pledge of the shares and not a sale; that, when the indebtedness secured by such collateral had been paid in full with interest, the pledgors were entitled to have the shares returned to them. Dollar v. Land, 87 U.S.App.D.C. 214, 184 F.2d 245.
Acting through Philip B. Perlman, Solicitor General, the former members of the Maritime Commission and their successor, Charles Sawyer, as Secretary of Commerce, petitioned for a writ of certiorari to review our holding. The Supreme Court denied the petition on November 13, 1950. Land v. Dollar, 340 U.S. 884, 71 S.Ct. 198.
We find as a fact, therefore, that since November 13, 1950, all the respondents here have known that a court of competent jurisdiction had finally adjudged that the transaction of 1938 was a pledge of the shares and that, if the members of the Maritime Commission or the Secretary of Commerce refused to surrender them to the pledgors after the indebtedness had been paid, they would hold them, not in their official capacities as agents of the United States, but as tort feasors acting in their individual capacities.
2. Respondent Charles Sawyer, acting on the advice of the Department of Justice respondents, continued nevertheless to hold possession of the shares and refused to surrender them to the pledgors, on the sole ground that the 1938 transaction was an outright transfer and not merely a pledge and that, therefore, Charles Sawyer in his official capacity was entitled to retain possession for the United States.
3. On December 11, 1950, the United States District Court for the District of Columbia entered an order on our mandate; and on December 15, 1950, notices of appeal to this court from that order were filed by the United States, the Secretary of Commerce, and the former members of the United States Maritime Commission. On January 31, 1951, we handed down an opinion in those appeals in which, as amended February 8, 1951, we directed the District Court to modify a portion of its judgment to read as follows:
“2. That plaintiffs are entitled to possession of the shares as against defendants,* and the defendants are ordered and directed to deliver forthwith to the plaintiffs the said shares. The possession to-which plaintiffs are entitled is an effective-possession of the shares. In so far as such, right requires action on the part of defendants in addition to physical delivery of the certificates, such action is hereby directed’ to be taken. Plaintiffs are entitled under this judgment to all rights belonging to-possessors of the shares. Plaintiffs are further entitled, as provided by Rule 70 of the Federal Rules of Civil Procedure, ‘to-a writ of execution or assistance upon application to the clerk’ of this court, if such, writ becomes necessary.
“ * Plaintiff Dollar Steamship Line 2,-100,000 shares of the B stock and 2,075 shares of the A stock;
“Plaintiff R. Stanley Dollar 51,174 shares, of the A stock;
“Plaintiff The Robert Dollar Co. 37,722 shares of the A stock;
“Plaintiff H. M. Lorber 9,174 shares of the A stock.”
We also noted that Charles Sawyer, Secretary of Commerce, had asserted in the District Court that he “holds custody of the stock which is the subject of this action” and with respect to him we said in the opinion:
“ * * * The District Court is directed to enforce obedience to its order, as herein modified, whether effective process is against the present named defendants or is against another official, or other officials, against whom the order might be lawfully enforced if he or they were a. party or parties to the suit. If the Secretary of Commerce now has custody or possession of the shares, he obviously acquired such custody or possession since the beginning of this action, indeed since the order of June 11, 1947. Obedience to the order about to be entered pursuant to this opinion is, therefore, enforceable against him, and he is liable, under Rule 71, supra, to the same process for enforcing obedience to that order as if he were a party.”
On February 14, 1951, Emory S. Land, et al., former members of the United States Maritime Commission, and Charles Sawyer, Secretary of Commerce, filed a petition for a writ of certiorari to review our judgment of January 31, 1951. The Supreme Court denied that petition on March 12, 1951. Land v. Dollar, 340 U.S. 948, 71 S.Ct. 198.
On March 16, 1951, the District Court entered an order in the language which was prescribed by us, and implemented it by adding thereto the following:
“1. Said Charles Sawyer shall endorse each of said stock certificates in blank by signing thereon in the place provided for endorsement ‘United States Maritime Commission, by Charles Sawyer, Secretary of Commerce.’ And shall forthwith deliver them to the plaintiffs. Such delivery may be made to Moses Lasky, one of the plaintiffs’ attorneys.
“2. If said Charles Sawyer delivers said certificates to plaintiffs or to said Moses Lasky, without having endorsed them, the clerk of this Court shall, at the request of any of the attorneys of the plaintiffs, ■ endorse each of said certificates in blank, signing them ‘United States Maritime Commission, by Harry M. Hull, Clerk of the United States District Court for the District of Columbia,’ and shall attach to each of said certificates a certified copy of this order and a certified copy of the above order on mandate modifying final judgment and shall forthwith return said certificates to the plaintiffs through their attorneys.
“3. Said Charles Sawyer shall also forthwith by telegram instruct American President Lines, Ltd., its president, secretary .and directors to transfer all the B stock, and 100,145. shares of the A stock of American President Lines, Ltd., to the plaintiffs in the amounts specified in the above mentioned order on mandate, and to make such transfers of record prior to said annual meeting.
“4. In the event the said Charles Sawyer fails by 9:00 A. M., on March 17, 1951, to give to the clerk and to plaintiffs’ attorneys at Room 432 Shoreham Building, Washington, D. C., proof satisfactory to said attorneys that he has complied with the . provisions of paragraph 3 above, the clerk of this Court shall forthwith give American President Lines, Ltd., its president, secretary and directors at 311 California Street, San Francisco 4, California, the following instructions and advice:
■ “That said American President Lines, Ltd., its president, secretary and directors are instructed to transfer all said shares of stock of record to the plaintiffs in the amounts specified in the said order on mandate, and to do so prior to the annual meeting of American President Lines, Ltd., on Monday, March 19, 1951; and
“The clerk shall give said advices and instructions by telegram or teletype so that they may. reach their destinations prior to the said annual meeting on March 19, 1951. The clerk may give said instructions and advices by sending to American President Lines, Ltd., its president, secretary and directors by telegram or teletype a copy of said order on mandate and a copy of this order together with a statement that the instructions commanded to be given by this paragraph 4 of this order shall be deemed thereby to have been given.”
4. During the period beginning in December, 1950, and extending into March, 1951, the Department of Justice respondents (other than respondent Perlman), acting pursuant to the directions of the Attorney General, caused to be delivered to American President Lines, Ltd., to Wells Fargo Bank & Union Trust Company, and Joseph A. Tognetti, as transfer agents of the stock of American President Lines, Ltd., and to appellees, written notices and demands on behalf of the United States that the United States is the true and lawful owner of said stock, that said stock not be transferred on the books of American President Lines, Ltd., in the names of ap-pellees, and that for any action taken by the persons to whom said notices were delivered in derogation of the title of the United States to said stock and certificates, said persons would be held strictly accountable to the United States.
. Respondent Clapp, actually gave such written notices and demands by telegraph and by letter pursuant to the decision so to do made by the Department of Justice respondents. Those respondents thereby caused the company and its transfer agents to refuse to transfer on the company’s books the certificates held by the Dollar interests endorsed by the clerk of the District Court.
5. The Department of Justice respondents advised respondent Sawyer that no more could properly be required of him in order to deliver effective possession of the shares to the Dollar interests “than for him to deliver physical possession of the stock certificates and, possibly, to endorse the certificates in his own name in his individual capacity (but not to endorse them in his official capacity as ‘Secretary of Commerce’).”
Confirming and communicating this advice, on March 16, 1951, respondent Perl-man, then Acting Attorney General, advised respondent Sawyer by letter that 'he might deliver the stock certificates to the Dollars but that it would be prejudicial to the interest of the United States as owner of the stock for him to endorse the stock in the name of the Maritime Commission or to instruct American President Lines, Ltd., to transfer the stock on its books to the Dollars.
6. Accordingly on March 16, 1951, the Secretary of Commerce delivered the certificates of stock but did not endorse them and did not give the instructions to the American President Lines, Ltd., which the District Court had directed him to give. On the contrary, Charles Sawyer, as Secretary of Commerce, executed on March 16, 1951, a proxy appointing A. J. Williams, Paul D. Page, Jr., and Lloyd C. Fleming as proxies for him to vote the shares of stock (certificates for which he had just surrendered pursuant to the court’s order) at the annual meeting of stockholders of American President Lines, Ltd., to be held in San Francisco on March 19, 1951.
On March 18, 1951, another proxy was executed to the same three persons for use at the annual meeting of stockholders to be held on March 19, 1951, which was signed “United States Maritime Commission, by Philip B. Fleming, Acting Secretary of Commerce.”
7. On March 19, 1951, the Department of Justice respondents (other than respondent Perlman), at the direction and with the approval of the Attorney General, caused to be' filed in the action which had been instituted by the United States in the District Court for the Northern District of California a motion for a preliminary injunction “to enjoin the Dollars from asserting any rights as owners of the stock and to enjoin American President Lines and its transfer agents from recognizing the Dollars as owners by so registering them on its stock transfer books or otherwise.” This was done for the purpose of enjoining and preventing enforcement of the decision and mandate of this court herein by preventing the transfer of effective possession of said shares to the Dollar interests. Said California court has issued a preliminary injunction such as was sought by respondents.
8. The annual meeting of stockholders of American President Lines, Ltd., was held in San Francisco on March 19, 1951. Respondent Killion presided and respondents Page and MacGuineas were present. Attorneys for the Dollar interests were also present and read to the meeting excerpts from our opinion of January 31, 1951, 188 F.2d 629, and read in its entirety the District Court’s order on mandate entered March 16, 1951. They presented proxies executed by the Dollar interests and demanded the right to vote the shares formerly in pledge. The transfer agent had declined to transfer of record the certificates which had been delivered to the Dollar interests by respondent Sawyer and which had been endorsed for the Maritime Commission by the clerk of the District Court.
Respondent Page presented the proxies executed by Charles Sawyer, Secretary of Commerce, and by the United States Maritime Commission by Philip B. Fleming, Acting Secretary of Commerce. Respondent MacGuineas stated that he and respondent Angelí appeared as attorneys for the United States. Inter alia, MacGuineas said: “On behalf of the United States I assert that the United States is the true and lawful owner of those shares and that it is lawfully entitled to vote those shares at this meeting, pursuant to the proxy given by the Secretary of Commerce, the duly authorized representative of the United States in that connection, and presented to your Secretary by Mr. Paul Page.” (P. 30 of transcript.)
After referring to the motion for a preliminary injunction filed by the United States in the California proceeding, Mac-Guineas said: “ * * * And therefore the United States feels assured of the vindication of its rights in that judicial proceeding and at this meeting asserts its right to vote the stock, the proxy of which [iic] has been submitted to you by Mr. Page.”
Counsel for the Dollar interests took exception to the acceptance of the proxies executed by Sawyer and Fleming. With respect to that the following colloquy occurred at the stockholders’ meeting:
“President Killion: Mr. Harrison, the officers and the directors of this corporation have been advised by our counsel, and in view of the conflict of orders which we have received we rely upon the District Court here for guidance and for instructions.
“Mr. Harrison: Rely upon whom, Mr. Chairman ?
^ ;je % afc *
“President Killion: Upon the District Court in San Francisco.
“Mr. Harrison: And not the District of Columbia courts?
“President Killion: No. In San Francisco. For guidance and instructions. We have orders to do this and orders not to do it.
“Mr. Harrison: The orders not to are from the Attorney General’s office ?
“President Killion: From the Attorney General’s office in Washington, D. C.
“Mr. Harrison: And the orders to do so are from the courts of the District of Columbia ?
“President Killion: That is correct. * * *
5ft SfS * * * *
“President Killion: Well, as I said earlier, Mr. Harrison, this corporation was made a party to the suit filed in District ■Court here in San Francisco by the Department of Justice. Subsequently we received from the Attorney General in Washington, D. C. instructions that are contrary to the instructions received by [sic] the Clerk of the Court in Washington, D. C. So therefore, acting on advice of counsel here, the directors and the officers of this ■corporation proceeded to ask the court in San Francisco for guidance and for instruction. The United States government says on the one hand that if we act, we act at our peril; the Clerk of the District Court in Washington, D. C. requests us to take action which is diametrically opposite to the instructions or to the orders we received by [sic] the Department of Justice in Washington. In the meantime, you know of the action that has been taken here.”
Respondent Page nominated the slate of directors furnished by respondent Killion •and voted for them the shares under the Sawyer and Fleming proxies. He did this “pursuant to instructions from his superior •officers in the Department of Commerce, and respondent MacGuineas, pursuant to instructions given him by his superior officers, the other Department of Justice respondents (other than respondent Perl-man) * * *.” Respondent Killion declared Page’s nominees elected.
Respondent Killion and the other respondents present at the meeting did not •obtain guidance and instructions from the California court as to the conduct of the meeting, as Killion had said they would do, but proceeded with the meeting in accordance with instructions and orders of the Department of Justice respondents which were diametrically opposite to our decree and that of the District Court entered on our mandate.
9. From the foregoing it appears that, as charged in the order to show cause, the respondents asserted at the annual meeting of stockholders of the company on March 19, 1951, and still assert, that the Dollar interests are not entitled to the effective possession of said shares; and at the hearing in said United States District Court for the Northern District of California on the application for said preliminary injunction respondents Angelí and MacGuineas, speaking for themselves and all the respondents, declared orally and in writing that the plaintiffs are not entitled to the effective possession of said shares and that the decree of this court that they are so entitled was and is “a serious miscarriage of justice” and for that reason they have “declined to acquiesce” in it
10. The respondents had full power and opportunity to cause the effective transfer and possession of said shares to the Dollar interests pursuant to the decree of this court but, in violation and defiance of this court’s decree, respondents did not cause or attempt to cause the transfer of effective possession of said shares to the plaintiffs, but on the contrary actively and affirmatively prevented such transfer.
The by-laws of American President Lines, Ltd., provide that “the holder” of a certificate of stock which bears an authenticated endorsement is entitled to have the certificate transferred on the books of the corporation. Article VII, section 1, of the by-laws of American President Lines, Ltd., is in part as follows: “ * * * The shares of stock in the corporation shall be transferable on the books of the corporation by the holder thereof in person or by his attorney, upon surrender for cancellation of a certificate or certificates for the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the corporation or its agents may reasonably require.”
11. From the foregoing findings it follows that, as charged in the order to show cause, respondents, on and after March 16, 1951, have asserted and stated on numerous occasions that respondent Charles Sawyer, as Secretary of Commerce, is lawfully entitled to maintain effective possession of said shares and to vote and exercise all of the rights of the possessor thereof, notwithstanding the decision of this court and the final judgment herein entered; and pursuant to said assertions respondent Sawyer has unlawfully maintained and continues to maintain an effective possession of said shares.
12. On March 19, 1951, the Dollar interests registered in the District Court for the Northern District of California the judgment entered March 16, 1951, by the District Court for the District of Columbia under the provisions of 28 U.S.C.A. § 1963. On March 21, 1951, the Dollar interests filed a petition in the California court for an order to show cause in civil contempt, specifying alleged contempts substantially similar to those specified in the show cause order entered by this court. The judge of the California court discharged the show cause order, holding there was no contempt. Respondents here contend that the dismissal of the contempt charges by the California District Court is binding and conclusive and constitutes a bar to the contempt proceedings now before us.
13. All action by the Department of Justice respondents or any of them, here-inabove described, was done pursuant to the approval and directions of their respective superior officers in the Department of Justice, including respondent Ford. Respondent Sawyer did not surrender effective possession of the shares to the Dollar interests, as our decree ordered him to do. The failure to comply fully with our decree and to surrender effective possession of the shares, and the prevention of the transfer thereof of record, resulted from the several acts and omissions of various respondents hereinbefore described, and from the concerted action of the Department of Justice respondents in advising him and respondent Killion to disobey our decree, and of respondents Sawyer, Page and Killion in accepting such advice and acting in accordance therewith.
14. Respondent Perlman took no action in connection with the charges stated in the order to show cause other than to sign, as Acting Attorney General, the letter to Charles Sawyer, Secretary of Commerce, in which he advised the Secretary to surrender the certificates as ordered by the District Court but advised him to disobey the District Court’s order to endorse the certificates and to instruct American President Lines, Ltd., to transfer them of record. Accordingly, all references here to-the Department of Justice respondents are to be construed as including all such respondents except respondent Perlman.
Conclusions of Law and Order
1. The suit filed by the Dollar interests to recover possession of the shares of stock in question, which the members of the Maritime Commission held under the claim that they were owned by the United States, presented two basic justiciable issues. Those issues were whether the United States owned the shares, and whether the-Dollar interests were entitled to possession ;. and the answer to the latter depended upon the answer to the former.
Our decision of July 17, 1950, with respect to which certiorari was denied by the Supreme Court, was that the shares were not owned by the United States, that the Secretary of Commerce therefore did not hold them in his official capacity, and that the Dollar interests were entitled to possession. This final decree was enforceable against the Secretary of Commerce under Rule 71, Federal Rules of Civil Procedure, 28 U.S.C.A. It then .became the duty of respondent Sawyer to surrender possession, and coercion to that effect should not have been necessary. Charles Sawyer as Secretary of Commerce could not and did not hold the shares after the pledge was discharged. Charles Sawyer, the private individual, never had the right to hold them.
The assertion of the respondents, and their action based on the assertion, after our decree of July 17, 1950, that the Secretary of Commerce had the right to retain possession of the shares, was disobedience of and resistance to that decree.
2. The respondents had the power to cause the certificates to be endorsed as directed, and to cause American President Lines, Ltd., to transfer the shares and to Issue certificates therefor to the Dollar interests, thus surrendering effective possession as our decree had ordered.
3. The acts of the respondents in causing the certificates to remain unendorsed hy the Maritime Commission or its successor, the Secretary of Commerce, and in causing American President Lines, Ltd., and its transfer agents to refuse to transfer the shares and to refuse to issue certificates to the Dollar interests, and their other acts described in the foregoing findings of fact, constituted disobedience of and resistance to our decree of January 31, 1951, as amended, and the District Court’s order on mandate entered March 16,1951.
4. The Dollar interests were entitled, under our decree, to complete and effective possession of the shares. Respondent Sawyer’s continued retention of possession was not and is not essential to the government’s maintenance of its suit to try title, and is not justified or excused by the respondents’ contention otherwise.
5. In its California suit to try title to the shares, the United States had no right to and no need for injunctive relief which would override and nullify our final decree. By seeking and obtaining a preliminary injunction with that purpose and effect, the respondents disobeyed and resisted our decree.
6. After the Secretary of Commerce had delivered the certificates of stock to the Dollar interests, even though unen-dorsed, he had no legal right to execute the proxy which he did execute with respect to such shares. Philip B. Fleming had no legal right to execute the proxy which he did execute with respect to such shares after the certificates therefor had been surrendered by the Secretary, endorsed by the clerk of the District Court, and delivered to the Dollar interests. Their acts in so doing were in disobedience of and resistance to the final decree of this court.
7. The fact that the District Court’s order on our mandate directed the clerk of that court to endorse the certificates if respondent Sawyer did not do so, and to give the prescribed instructions to American President Lines, Ltd., its president, secretary and directors, if respondent Sawyer had failed to do so by 9:00 a. m. on March 17, 1951, did not relieve respondent Sawyer of the affirmative duty of endorsing the certificates and of giving the prescribed instructions to American President Lines, Ltd., its president, secretary and directors, or of securing by other action the delivery of effective possession of the shares as he was directed to do by the court’s order.
8. The fact that only those shareholders whose shares had been of record on February 26, 1951, would be entitled to vote at the annual meeting of the stockholders on March 19, 1951, did not confer the legal right to vote at such meeting upon respondent Sawyer or his proxies because Sawyer was not legally in possession of the shares at the time of the annual meeting.
9. That the respondents may have bélieved in good faith that our decrees were erroneous did not justify them in disobeying or resisting them. Those decrees, like any other final judicial order, were to be precisely and promptly obeyed by all against whom they were enforceable, no matter how erroneous they may have been. No person can make himself the judge of the validity of a final judicial decree and, by his own act of disobedience, set it aside. United States v. United Mine Workers of America, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; Howat v. Kansas, 1922, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550; Gompers v. Buck’s Stove & Range Co., 1911, 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797; In re Sylvester, D.C.S.D.N.Y. 1930, 41 F.2d 231.
10. Effective possession of these shares of stock will have been delivered to the Dollar interests when those interests have been recorded in the books of the American President Lines, Ltd., as the holders of the shares, and certificates evidencing such stockholdings have been delivered to them.
11. The official status of the respondents does not immunize them from punishment for contempt. Government officials are bound to obey the judgment of a court just as are private citizens, and their belief that the judgment is wrong, no matter how great their good faith in entertaining such belief, cannot justify them in disobeying, or resisting enforcement of, the judgment unless and until it has been set aside or reversed on appeal. In re Sylvester, D.C.S.D.N.Y.1930, 41 F.2d 231.
12. Respondent Killion, who, as president of American President Lines, Ltd., was a creature of respondent Sawyer, deliberately chose to follow the orders and instructions of his co-respondents, and to disobey and resist the decree of this court. The fact that he was not a party to this suit does not justify or excuse his disobedience and resistance nor protect him from punishment therefor. Cassidy v. Puett Elec. Starting Gate Corp., 4 Cir., 1950, 182 F.2d 604; Harford Agr. & Breeders’ Ass’n v. Puett Elec. Starting Gate Corp., 4 Cir., 1950, 182 F.2d 608, certiorari denied 340 U.S. 878, 71 S.Ct. 125, rehearing denied, 1950, 340 U.S. 898, 71 S.Ct. 237.
13. By virtue of 18 U.S.C.A. § 401 this court has summary power to punish by fine or imprisonment, at its discretion, contempt of its authority when that contempt consists of “Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
14. This court, having directed the United States District Court for the District of Columbia to enter a judgment on mandate in terms prescribed by it, has the power to punish for contempt those who disobey or resist the order on mandate so entered by the District Court. Merrimack River Sav. Bank v. City of Clay Center, 1911, 219 U.S. 527, 31 S.Ct. 295, 55 L.Ed. 320; Toledo Scale Co. v. Computing Scale Co., 1923, 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719.
15. Disobedience of or resistance to our decree constitutes contempt of this court, no matter where the act of contempt was committed. Leman v. Krentler-Arnold Hinge Co., 1932, 284 U.S. 448, 52 S.Ct. 238, 76 L.Ed. 389.
16. This court had jurisdiction to enter orally on April 6, 1951, its rule to show cause and to enter formally in writing on April 10, 1951, its rule to show cause.
17. The registration of the judgment of the District Court for the District of Columbia in the District Court in California gave the latter court no power to-deal with the judgment except to enforce it. The decision of the California court, that the respondents here were not in contempt there could not and did not foreclose-this court from proceeding with the present contempt proceeding, and its judgment of no contempt is not res judicata here.
18. It is considered and adjudged that,, because of their acts and omissions described in the foregoing findings of fact,, the respondents, Charles Sawyer, Peyton Ford, Newell A. Clapp, Edward H. Hickey,. Donald B. MacGuineas, Philip B. Perlman, Philip B. Fleming, George L. Killion, Philip Angelí and Paul D. Page, Jr., are, and’ each of them is, guilty of civil contempt of this court.
19. Respondent Perlman may purge himself by rescinding his advice to-the Secretary of Commerce to disobey this-court’s decree and the implementing order of the District Court, and by advising the Secretary of Commerce to comply forthwith, fully and effectively, with the decree-
20. The other Department of Justice respondents may purge themselves by withdrawing the contemptuous advice and instructions which they have given to respondents Sawyer, Killion and Page, and to American President Lines, Ltd., its-secretary, directors and transfer agents,, and by advising and instructing that the-decree of this court be complied with immediately, fully and effectively; and by taking whatever steps are necessary to relieve American President Lines, Ltd., and its stock transfer agents of the preliminary injunction issued by the District Court in California which prohibits American President Lines, Ltd., and its stock transfer agents from transferring on the corporate records the shares represented by the certificates presented by the Dollar interests.
The respondents will not be heard to say it is beyond their power to accomplish this. If it is necessary to do so in order to remove the restraint of the preliminary injunction, the Department of Justice respondents can dismiss without prejudice the suit to try title which they instituted in the name of the United States in the California District Court, and can then immediately re-file it.
21. Respondent Sawyer may purge himself by endorsing on the certificates “United States Maritime Commission, by Charles Sawyer, Secretary of Commerce,” and by causing respondent Killion, American President Lines, Ltd., and its transfer agents to transfer the shares to the Dollar interests on the corporate books and to issue certificates to them.
22. Respondent Killion may purge himself by causing American President Lines, Ltd., and its stock transfer agents to transfer the shares of record to the Dollar interests and to issue to them certificates therefor.
23. It is suggested in respondents’ brief that, since the issuance of the order to show cause herein, respondent Page has resigned from his position in the Department of Commerce and no longer has an official status. If that be made to appear by affidavit, respondent Page will be excused from purging himself of the civil contempt of which he is guilty, since he will have no power or authority to aid the other respondents in the effectuation of our decree.
24. The respondents will be given until 3:00 p. m., E. D. T., May 24, 1951, to purge themselves of the civil contempt of which they are guilty. They are hereby ordered to present themselves before this court in the courtroom of the United States Court of Appeals Building, 5th and E Streets, Northwest, Washington, D. C., at that hour and day, unless prior to that time they shall have presented to the court evidence that they have fully and effectively obeyed the decree and the court has found such evidence to be adequate. Or they may present at the time of their appearance evidence that they have fully and effectively obeyed the decree, which evidence the court will immediately examine for adequacy. If evidence of compliance is not presented to the court at or before the time thus fixed or, if presented, the evidence shall be found by the court to be inadequate, respondents will then be committed to custody to remain in confinement until they have fully and effectively complied with the decree.
Proof of compliance which does not show that American President Lines, Ltd., has issued and delivered to the Dollar interests certificates evidencing the shares in question will not be regarded as adequate.
Opinion.
PER CURIAM.
We have rendered four opinions upon various phases of this litigation. 1951, 88 U.S.App.D.C. -, 188 F.2d 629; 1951, 88 U.S.App.D.C. -, 190 F.2d 366; 1946, 81 U.S.App.D.C
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: |
sc_casesource | 003 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
CENTRAL BANK v. UNITED STATES.
No. 521.
Argued April 29, 1953.
Decided June 1, 1953.
George H. Roster argued the cause for petitioner. With him on the brief was Llewellyn A. Luce.
Lester S. Jayson argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Burger and Samuel D. Slade.
Mr. Justice Reed
delivered the opinion of the Court.
This grant of certiorari requires us to construe the provision of the Assignment of Claims Act of 1940, 54 Stat. 1029, 31 U. S. C. § 203, which provides:
“Any contract entered into by the War Department or the Navy Department may provide that payments to an assignee of any claim arising under such contract shall not be subject to reduction or set-off, and if it is so provided in such contract, such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract.”
The facts of the case are not in dispute. The Graham Ship Repair Company, a California partnership, entered into a contract for ship repair work with the Navy Department on December 30, 1944. As permitted by the Assignment of Claims Act of 1940, the contract authorized the Graham Company to assign the proceeds of the contract to a bank and payments to the assignee bank were not to be “subject to reduction or set-off for any indebtedness of the Contractor to the Government arising independently of this contract.”
After the contract had been made, the Graham Company arranged with petitioner, a California banking corporation, for the financing of the ship repair work. As security for the funds to be advanced, Graham assigned the proceeds payable under the contract to petitioner. This assignment was made on January 31, 1945. The Contracting Officer, Bureau of Ships, Navy Department, the Disbursing Officer and the General Accounting Office were duly notified of the assignment as required by the Act.
Pursuant to the assignment, the Graham Company-received substantial sums of money from petitioner for use in performing the contract. During the course of performance Graham failed to remit to the Collector of Internal Revenue $453,469.55 in withholding taxes, and $11,462.91 in federal unemployment taxes, which it had withheld, pursuant to §§ 1401 and 1622 of the Internal Revenue Code, from the salaries and wages of its employees who were engaged in work called for by the Navy contract. Instead of remitting these sums to the Collector, Graham had converted them to its own use. Because of this dereliction the contract was terminated by the Navy on March 31, 1946, and the individuals of the Graham partnership pleaded guilty to an indictment for willful attempt to evade the payment of the withheld taxes.
At the time the contract was terminated, Graham’s obligation to the Government for the unpaid withholding taxes, with interest and penalties, aggregated $616,750.95. At that time the sum of $110,966.08 was due Graham from the Government for work performed under the contract. Also at that time Graham was indebted to petitioner in an amount in excess of $110,966.08 for advances made by petitioner pursuant to the assignment.
Petitioner, as assignee, filed a claim for the balance due from the Government under the contract. The Commissioner of Internal Revenue also claimed that amount. The Comptroller General ruled that the $110,966.08 was a proper set-off against Graham’s tax indebtedness and accordingly reduced such indebtedness to $415,018.17.
Thereafter petitioner brought this suit in the Court of Claims. That court held that the set-off made by the Comptroller General was proper because the tax deductions withheld were “not entirely independent of such contract,” Central Bank v. United States, 123 Ct. Cl. 237, 105 F. Supp. 992, 994, and that petitioner was therefore not entitled to recover under the assignment.
Prior to 1940, an assignment such as Graham made to petitioner would have been of no effect as against the United States. Under the Anti-Assignment Statutes (R. S. §§ 3477 and 3737), while the assignment might in some circumstances have been good as between the assignor and assignee (Martin v. National Surety Co., 300 U. S. 588), it could not operate to the détriment of rights of the United States. Any set-off which the United States had against an assignor would have been effective against the assignee.
The Assignment of Claims Act of 1940, amending the Anti-Assignment Statutes, validated the assignment of moneys due or to become due under any government contract if the assignment were made to a financing institution. The Act authorized the War and Navy Departments to limit the Government’s previous rights of set-off. See R. S. §§ 3477, 3737, as amended. It provided, see 31 U. S. C. § 203, p. 640, supra, “that payments to an assignee of any claim arising under such contract shall not be subject to reduction or set-off.”
The Assignment of Claims Act of 1940 was evidently designed to assist in the national defense program through facilitating the financing of defense contracts by limiting the Government’s power to reduce properly assigned payments. Borrowers were not to be penalized in security because one contracting party was the Government. Contractors might well have obligations to the United States not imposed by the contract from which the payments flowed, as for example the contractor’s income tax for prior earnings under the contract. The taxes here involved are another good illustration of the dangers to lenders.
The clause in question which prohibits set-offs for “any indebtedness of the assignor to the United States arising independently of such contract,” was embodied in an amendment introduced by Senator Barkley during debate on the Act. In proposing the amendment, the Senator stated:
“Mr. President, the amendment merely provides that when a contractor, in order to obtain money so that he may perform his contract with the Government under the defense program, assigns his contract to a bank or trust company in order to get money with which to proceed with the work, it shall not be permissible to offset against the claim or contract later an indebtedness which the contractor may owe the Government on account of some other contract or some other situation. . .
Otherwise,
“. . . the Government could come in and assert a claim against the contractor on account of something else which had no relationship whatever to the contract and the defense program.”
In the decision below the court said:
“The assignee knew that the contractor would be required to withhold and pay taxes to the defendant. The obligation of the contractor for the taxes in question arose before the partners converted such taxes to their own use and such obligation was therefore directly associated with the contract.
“In order to be independent, as we think that term was used and intended by the Assignment of Claims Act, the indebtedness must arise irrespective of, exclusive of, and separate from the contract, and must have no direct relation with such contract.”
To support its position, the words of United States v. Munsey Trust Co. were relied upon:
“[One] is not compelled to lessen his own chance of recovering what is due him by setting up a fund undiminished by his claim, so that others may share it with him.” 332 U. S. 234, 240.
The Munsey case is inapplicable. It turns on the ability of the Government to reimburse itself ahead of a surety for sums expended to pay laborers out of funds withheld by the United States from the surety’s principal. No problem of assignment was involved and we held the Government could set off its independent claim against the surety.
The requirement that Graham withhold taxes from the “payment of wages” to its employees and pay the same over to the United States did not arise from the contract. The requirement is squarely imposed by §§ 1401 and 1622 of the Internal Revenue Code. Without a government contract Graham would owe the statutory duty to pay over the taxes due, just as it would to pay its income tax on profits earned. Graham’s embezzlement lay neither in execution nor in breach of the contract. It arose from the conversion of the withheld taxes which Graham held as trustee for the United States pursuant to § 3661 of the Code. Assignor Graham’s indebtedness to the United States arose, we think, “independently” of the contract.
Finally it is urged that the Act should be construed so as to protect the United States. The short answer to this is that the Act should be construed so as to carry out the purpose of Congress to encourage the private financing of government contracts. To grant the Government its sought-for rights of set-off under the circumstances of this case, would be to defeat the purpose of Congress. It would require the assignee to police the assignor’s accounting and payment system. It would increase the risk to the assignee, the difficulty of the assignor in financing the performance, and the ultimate cost to the Government.
Reversed.
The Chief Justice, Mr. Justice Burton and Mr. Justice Clark dissent.
Mr. Justice Black and Mr. Justice Jackson took no part in the consideration or decision of this case.
Amended so as to include the Department of the Air Force by the Act of July 26, 1947, 61 Stat. 501, 508, 31 U. S. C. (Supp. III) § 203.
The issue before us has been prospectively settled for others by the 1951 Assignment of Claims Act (65 Stat. 41, 31 U. S. C. (Supp. V) § 203). That Act amended the Assignment of Claims Act of 1940 by rephrasing subsection 4 so as to bar by specific words the United States from setting off “any liability of the assignor on account of (1) renegotiation ... (2) fines, (3) penalties . . ., or (4) taxes, social security contributions, or the withholding or non-withholding of taxes or social security contributions, whether arising from or independently of such contract.
“Except as herein otherwise provided, nothing in this Act, as amended, shall be deemed to affect or impair rights or obligations heretofore accrued.” 65 Stat. 41, 42.
This amendment was caused by uneasiness among lenders because of rulings of the Comptroller General:
“In an opinion dated May 17, 1949, the Comptroller General held that, in the event of a price revision under a Government contract, any amount in excess of the contract price as so revised may either be withheld from payment to the assignee ‘or recovered directly from the assignee if already paid.’ Generally, when any payment is received by an assignee bank, it is immediately applied to the contractor’s loan, and the excess is released to the borrower. In several instances, long after full payment of a bank’s loan to a contractor, the Comptroller General has made claims for recovery of payments previously made to the bank assignee.
"It had also been the understanding of banks that the statute protected them against set-off by the Government on account of any claims by the Government against the contractor arising outside of the terms of the assigned contract. However, in an opinion dated May 15, 1950, the Comptroller General ruled that claims by the Government against a contractor on account of unpaid social-security contributions and withheld income taxes were claims which did not arise independently of the assigned contract.” S. Rep. No. 217, 82d Cong., 1st Sess., p. 2.
Hearings before the Senate Committee on Banking and Currency on S. 4340, 76th Cong., 3d Sess., p. 2 et seq.; 86 Cong. Rec. 12803; H. R. Rep. No. 2925, 76th Cong., 3d Sess., p. 2; S. Rep. No. 2136, 76th Cong., 3d Sess., p. 2.
86 Cong. Rec. 12803.
Central Bank v. United States, 123 Ct. Cl. 237, 244, 245, 105 F. Supp. 992, 994.
Ҥ 1400. Rate of tax.
“In addition to other taxes, there shall be levied, collected, and paid upon the income of every individual a tax equal to the following percentages of the wages ....
“§ 1401. Deduction of tax from wages — (a) Requirement.
“The tax imposed by section 1400 shall be collected by the employer of the taxpayer, by deducting the amount of the tax from the wages as and when paid.
“(b) Indemnification of employer.
“Every employer required so to deduct the tax shall be liable for the payment of such tax, and shall be indemnified against the claims and demands of any person for the amount of any such payment made by such employer.
“§ 1622. Income tax collected at source — (a) Requirement of withholding.
“Every employer making payment of wages shall deduct and withhold upon such wages a tax equal to the sum of the following: . . .
Ҥ 3661. Enforcement of liability for taxes collected.
“Whenever any person is required to collect or withhold any internal-revenue tax from any other person and to pay such tax over to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.”
United States v. Guaranty Trust Co., 280 U. S. 478, 483. In the Guaranty Trust case the United States sought priority under R. S. § 3466 for its debts from embarrassed railroads. Transportation Act of 1920, Tit. II, §§ 207, 209, 210, 41 Stat. 456, 457-469. Although there was no specific waiver of § 3466, similar to the waiver of the right of set-off or reduction here claimed, this Court held:
“To have given priority to debts due the United States pursuant to Title II, would have defeated the purpose of Congress. It not only would have prevented the reestablishment of railroad credit among bankers and investors, but it would even have seriously impaired the market value of outstanding railroad securities. It would have deprived the carriers of the credit commonly enjoyed from supplymen and others; would have seriously embarrassed the carriers in their daily operations; and would have made necessary a great enlargement of their working capital. The provision for loans under § 210 would have been frustrated. For, carriers could ill afford voluntarily to contract new debts thereunder which would displace, pro tanto, their existing bonded indebtedness. The entire spirit of the Act makes clear the purpose that the rule leading to such consequences should not be applied.” 280 U. S., at 485.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
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Answer: |
songer_const2 | 106 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Appellant, v. Michael Jeffrey STOTTS, III, Plaintiff-Appellee, Edwin Meese; Norman A. Carlson; Gary R. McCune; Sam Samples; Lara Tuggle; Ronnie Alston, All sued in their individual and official capacities; J. Michael Quinlan, In his official capacity as Director of the Bureau of Prisons, Defendants, and North Carolina Civil Liberties Union Legal Foundation, Amicus Curiae. UNITED STATES of America, Appellant, v. Michael Jeffrey STOTTS, III, Plaintiff-Appellee, Edwin Meese; Norman A. Carlson; Gary R. McCune; Sam Samples; Lara Tuggle; Ronnie Alston, All sued in their individual and official capacities; J. Michael Quinlan, In his official capacity as Director of the Bureau of Prisons, Defendants.
Nos. 90-7012, 90-6859.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 31, 1990.
Decided Feb. 5, 1991.
Eileen G. Coffey, Asst. U.S. Atty., argued (Margaret Person Currin, U.S. Atty., R.A. Renfer, Jr., Asst. U.S. Atty., on brief), Raleigh, N.C., for appellant.
Marvin Ray Sparrow, North Carolina Prisoner Legal Services, Inc., Raleigh, N.C., for plaintiff-appellee.
Jonathan A. Blumberg, Melissa H. Hill, Tharrington, Smith & Hargrove, Raleigh, N.C., for amicus curiae.
Before ERVIN, Chief Judge, WILKINSON, Circuit Judge, and HOUCK, United States District Judge for the District of South Carolina, sitting by designation.
WILKINSON, Circuit Judge:
This case involves a constitutional challenge to regulations promulgated by the United States Bureau of Prisons concerning the handling of incoming prisoner mail. The regulations at issue specify how incoming mail must be marked to qualify for confidential treatment as special or legal correspondence. The federal magistrate judge held that the regulations unconstitutionally obstructed prisoner Stotts’ right of access to the courts and his freedom of expression. Because we believe that the Bureau of Prisons’ regulations are “reasonably related to legitimate penological interests,” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), we now reverse.
I.
Michael Stotts, a prisoner in custody of the United States Bureau of Prisons, filed a complaint on July 29, 1986 in the United States District Court for the Eastern District of North Carolina, alleging that prison officials at the Federal Correctional Institute at Butner, North Carolina were violating his constitutional rights. The sole claim that survived for trial was his request for injunctive relief against the Bureau of Prisons’ (BOP) policies regarding incoming legal or special mail. Stotts charged that prison officials were violating rights guaranteed by the First, Fifth, and Sixth Amendments by opening and reading his confidential legal mail.
Federal regulations divide incoming prison mail into two categories: general and special. General mail is subject to being opened by prison officials, checked for contraband, read for plans to perform illegal acts, and then reclosed and delivered to the prisoner. 28 C.F.R. § 540.14 (1990). Special mail refers to certain written communications from attorneys, courts, congressmen and other public officials. It enjoys more protection than general mail in that it cannot be read by prison officials and can be opened to check for contraband only in the presence of the prisoner to whom it is addressed. Id. § 540.18.
Correspondence qualifies as special mail only “if the sender is adequately identified on the envelope, and the front of the envelope is marked ‘Special Mail — Open Only in the presence of the inmate.’ ” Id. § 540.18(a). Mail from an attorney has to be marked not only with the “Special Mail” phrase, but also with the attorney’s name and the fact the sender is an attorney. Id. § 540.19(b). Officials at Butner, where Stotts was held, require that all special mail be delivered within twenty-four hours of its receipt. The date and time of receipt of special mail at the institution are entered in a log and the mail is then given to the inmate’s unit manager, who signs a receipt. Each unit manager also maintains a separate log to record his receipt of the mail and the time of delivery to the inmate. Inmates sign receipts upon final delivery of the mail. See id. § 540.19(a).
In 1988, the BOP issued an Operations Memorandum regarding handling of special mail. Although the regulations themselves remained unchanged, the BOP adopted three new procedures in implementing them: (1) mail from a judge’s chambers or a congressional member was to be treated as special mail, even if not marked as such; (2) inmates were to be provided instruction sheets with which to inform their attorneys of how to comply with the special mail regulations; (3) mail from qualified senders besides judges and congressmen was to be treated as special mail if the sender was adequately identified on the envelope and if the correspondence was marked either with the complete “Special Mail” phrase or with similar language indicating that it qualified for special treatment and was to be opened only in the presence of the prisoner. The last provision was designed to discourage prison officials from declaring that only envelopes bearing “magic words” would qualify as special mail. Evidence showed that officials at Butner had been using such an approach in 1986 when Stotts filed his suit.
A trial was held before a federal magistrate judge in February 1989 pursuant to 28 U.S.C. § 636(c). Stotts argued that the regulations as applied both in 1986 and under the 1988 procedures were unconstitutional. He pointed to the North Carolina prison system’s special mail policy as “a ready, reasonable, feasible alternative” to the federal approach. The magistrate judge found that in North Carolina state prisons, any letter that appears from its return address to be from an attorney, law firm, or court is accorded special mail status. Holding that the regulations were not reasonably related to any legitimate peno-logical interest, the magistrate judge declared them unconstitutional as applied to Stotts in 1986 and 1988. He then enjoined defendants from reading or opening outside of Stotts’ presence any incoming mail addressed to Stotts and “bearing an apparently genuine return address of an attorney, a law firm, any court official or any government official, whether or not there are any particular markings on the envelope.”
The BOP now appeals.
II.
Under Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), a prison regulation “is valid if it is reasonably related to legitimate penological interests.” The BOP maintains that its mail system is rationally related both to security and administrative interests. We agree that both the requirement that the legal sender be specifically identified and the requirement that confidential mail be marked as such serve legitimate state ends.
A.
We recognize at the outset that prison inmates retain a number of constitutional rights, including the right to petition the government for redress of grievances, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the right of access to the courts, Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), the protection of due process, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and freedom of expression. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The contours of these rights are, however, imprecise. In Wolff v. McDonnell, the Court rejected a state prisoner’s claim that prison officials could not open mail from his attorney to check for contraband, noting that the constitutional status of the rights the inmate claimed under the First, Sixth and Fourteenth Amendments was “far from clear.” 418 U.S. at 575, 94 S.Ct. at 2984. For example, the Fourteenth Amendment right of due process via access to the courts “has not been extended ... to apply further than protecting the ability of an inmate to prepare a petition or complaint.” Id. at 576, 94 S.Ct. at 2984; Royse v. Superior Court of Washington, 779 F.2d 573, 575 (9th Cir.1986). Notwithstanding the vague parameters of the rights which Stotts asserts, we shall assume for purposes of this appeal that they are implicated by the regulations which he challenges.
Recognition of some measure of constitutional protection, however, “in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which [prisoners] have been lawfully committed.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975. Maintaining safety and internal security are “core functions of prison administration,” Turner, 482 U.S. at 92, 107 S.Ct. at 2263, that can justify “withdrawal or limitation of many privileges and rights_” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Other legitimate penological objectives that warrant limits on the exercise of inmate rights include rehabilitation of prisoners and deterrence of crime, O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987), as well as the savings of scarce prison resources. Id. at 352-53, 107 S.Ct. at 2406-07; see Turner, 482 U.S. at 90, 107 S.Ct. at 2262.
It is important, in balancing these interests, that courts respect the determinations of prison officials. Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 1878-81, 104 L.Ed.2d 459 (1989). Under Turner, we focus simply on whether the regulations are reasonable. This is a deferential standard that is “necessary if ‘prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.’ ” 482 U.S. at 89, 107 S.Ct. at 2261 (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977)). Under a standard of heightened judicial scrutiny, “every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand.” Id. Our approach, therefore, is one of caution; we are not “unnecessarily to perpetuate the involvement of the federal courts in affairs of prison administration.” Procunier v. Martinez, 416 U.S. 396, 407, 94 S.Ct. 1800, 1808, 40 L.Ed.2d 224 (1974); see also Thornburgh, 109 S.Ct. at 1879-81.
B.
Turner v. Safley established a four-part test for determining the constitutionality of prison regulations. Under the first part we must examine the prison regulations and the governmental interests justifying them to see whether they are reasonably related. 482 U.S. at 89-90, 107 S.Ct. at 2261-62. Stotts initially asserts that the prison rules regarding mail do not advance security interests. The only real difference between special and general mail, he maintains, is that prison officials do not read special mail; therefore, it is possible that plans for illegal acts such as escapes that are contained in special mail could pass to inmates unobserved. Stotts claims, however, that the challenged regulations do not decrease this possibility because anyone wishing to smuggle in escape plans could take extra precautions to comply with the regulations and could easily include an attorney’s name in the return address and mark the letter with the “Special Mail” legend.
The prospect that a conspirator in an escape plan may inscribe a fictitious attorney name on readily available legal letterhead and thus “comply” with the regulations hardly renders them unreasonable, however. In fact, the regulations make fictional devices easier to disprove, and thus create a deterrent effect. Requiring the name of the specific person claiming an attorney-client privilege, for example, makes screening quicker and more accurate. In order to verify in advance of delivery that a given letter is genuine, a prison official need not call a law firm and try to ascertain which of many attorneys may be working on a case, but can simply and quickly speak with the named lawyer. Should a breach of security actually occur, the process of tracing senders subsequent to delivery would similarly be enhanced. Moreover, the Supreme Court has already stated that requiring attorneys to identify themselves to prison officials in advance and to specially mark their mail with their name and address in order to obtain special treatment is “entirely appropriate.” Wolff, 418 U.S. at 576-77, 94 S.Ct. at 2984-85.
Stotts argues further that the regulations have no impact upon security concerns surrounding contraband because every letter, whether special or general, is opened and examined for materials such as money and drugs. This overlooks a critical point. Letters marked as special mail are opened in the prisoner’s presence, so any contraband in the envelope would be within reach of the inmate. A prisoner’s obvious temptation to attempt to obtain scarce contraband may place the officer opening the mail at risk. This risk increases with the volume of special mail, particularly as more letters that are not confidential legal mail are treated as such.
Contrary to the magistrate judge’s reasoning, the BOP does not need actually to demonstrate that its regulations enhance deterrence or diminish security risks. The BOP can and should act in anticipation of prospective security concerns. See O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404; Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62. We will not require that an actual breach of security occur before upholding regulations designed to prevent it. The absence of documented security breaches at Butner associated with special mail is consistent with the government’s deterrence theory. In sum, there is a clear rational relationship between the regulations and security interests.
Stotts argues additionally that the regulations do not advance any legitimate administrative interests. He recognizes that his desired mail system will result in an increased quantity of correspondence that is given special treatment. Yet he asserts that the only resulting administrative burden is that created by the BOP itself in requiring multiple records of receipts and deliveries every time special mail changes hands. The magistrate judge found that this recordkeeping system was developed to defend against prisoners’ claims of mail processing delays rather than to promote security, and thereupon dismissed its legitimacy by characterizing it as “gratuitously provided.”
That approach epitomizes the micromanagement of prisons that courts should not attempt. Prisons must work with very limited resources. If prison management has instituted a precise recordkeeping system to stave off the necessity of defending itself against prisoners’ legal claims, we must assume that it has found the costs of recordkeeping to be less than the costs of defending itself. We are not in a position to second-guess that judgment as it is purely one of prison administration. Furthermore, the magistrate judge erred in ruling that the recordkeeping system was “not pursuant to any legitimate penological concern.” Protecting the institution from lawsuits by documenting official actions could hardly be more appropriate, and preventing a drain of prison resources is clearly legitimate. O’Lone, 482 U.S. at 352-53, 107 S.Ct. at 2406-07. To hold otherwise would require that prison officials leave themselves vulnerable to inmate legal action or adopt slipshod mail delivery systems. It is particularly ironic that Stotts discounts as unnecessary a set of procedures that guarantees he will receive all special mail within twenty-four hours of its arrival at the prison.
The BOP has thus articulated how its regulations advance both security and administrative interests. The logical connection between these interests and the challenged regulations are hardly “so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at 89-90, 107 S.Ct. at 2262.
The second Turner inquiry is “whether there are alternative means of exercising the right that remain open to prison inmates.” 482 U.S. at 90, 107 S.Ct. at 2262. Stotts argues that the mail is a prisoner’s only link to lawyers, public officials, and courts. We agree that the mail is an important means of communication for prisoners but observe that it is hardly the only one. Prisoners can additionally communicate with their attorneys via the telephone and personal visits.
The main point, however, is that Stotts’ right of access to the courts is hardly obstructed by requiring that confidential legal mail be appropriately marked. Under the BOP’s regulations, prisoners receive every piece of their mail, whether it is special or general, whether it is opened in or outside of their presence, and whether or not it is read. Stotts makes no claim of censorship. Not a single piece of mail that Stotts sends out from the prison to his attorneys or to a court can be opened or read. 28 C.F.R. § 540.18(c) (1990). Ami-cus North Carolina Civil Liberties Union maintains that prison officials may have an interest in litigation concerning prison conditions and may receive advance warning of litigation or become privy to trial strategies by reading confidential mail. This argument falls, however, on the fact that every confidential communication can easily and consistently be made secure from undue scrutiny. Some classes of mail, such as letters from a judge’s chambers, are automatically accorded special mail status. Attorneys can guarantee the privacy of their communications simply by including their name and occupation in the return address and by affixing a legend to the envelope. The cost of compliance with the regulations is virtually nil. Attorneys could easily obtain a stamp or stickers with which to mark legal mail they send to prisons. Inmates can easily notify their lawyers of the regulations because the BOP provides prisoners with sheets of instructions to send their legal correspondents. It is difficult to see a burden of constitutional dimension when Stotts receives and reads all his incoming mail, is able to send freely his outgoing mail, can easily inform his attorneys of the proper procedures, and the costs of complying with the regulations are trivial.
The third consideration under Turner is “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” 482 U.S. at 90, 107 S.Ct. at 2262. Under Stotts’ preferred delivery system, officials would look merely for the return address of an “apparently genuine” legal sender; attorneys would not have to identify themselves and envelopes would not have to bear any words requesting confidentiality or special treatment. Stotts concedes, as he must, that under this system the quantity of mail that is treated as special mail will increase. In addition, the difficulties and uncertainties of handling mail will be magnified, and the administrative costs and resources devoted to mail delivery may rise accordingly. The evidence below does not suffice to quantify the consequences of adopting Stotts’ proposal, but the simple recognition of its deleterious effect serves to buttress the reasonableness of the BOP’s current regulations.
The fourth and final factor is the presence or absence of any ready alternatives. Turner, 482 U.S. at 90, 107 S.Ct. at 2262. This inquiry is not intended to be a “least restrictive alternative” test in which prison officials must “set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” Id. at 90-91, 107 S.Ct. at 2262. Rather, the existence of a ready alternative can be cited as evidence that the government’s regulation is not reasonably related to a legitimate penological interest. Id. at 91, 107 S.Ct. at 2262. Here, Stotts points to the mail procedures used by the North Carolina prison system as showing that the BOP’s regulations are unreasonable. According to a former superintendent of three North Carolina prisons, state officials would treat as legal mail any correspondence “that appeared to be from an attorney or court system.”
It is not at all clear, however, that such an approach better protects prisoners’ rights. Sorting officials possess a larger degree of discretion under such a system, with a correspondingly increased possibility of inconsistent treatment of similar letters. Guards may be unable to determine whether or not a communication is truly deserving of protection absent a notation designating it as confidential. An “apparently genuine” standard is a nebulous one that could easily give rise to prisoners’ claims that they had been harmed when legal mail had been improperly or inconsistently handled. Thus, prison officials seem to face the choice of establishing an easily applicable bright-line rule and responding to complaints that the rule is too arbitrary and harsh, or of establishing a discretionary standard and responding to claims that such a standard is vague, arbitrary, and inconsistently applied.
We cannot fault the BOP for opting to implement the clearer rule. Any uniform rule will be unavoidably arbitrary to some extent, in that some specific number of communications that actually are special mail will fall outside the established category because they have been mismarked. Yet a consistent requirement that special mail be marked with a legend accomplishes two significant goals here. First, it provides mailroom workers a ready screening technique for handling the more than 156,-000 pieces of mail a week that the federal prison system must process. Second, and more importantly, it provides a guarantee to prisoners and attorneys that if they comply with the regulations, their mail will receive special treatment. Parties need not trust to the discretion of whichever employee is sorting the mail on a given day to receive protection; they can ensure special treatment by properly marking their letters. In addition, a former North Carolina prison superintendent testified that state guards would quickly skim page by page through the legal mail once it was opened in order to verify that it was, in fact, legal mail. Officials at Butner, however, are prohibited from glancing at the contents of legal mail, even to determine whether it is actually legal mail. In that respect, the federal system may afford more privacy to special mail than does the described state system.
Whether the procedures employed in the federal system or in the North Carolina prison system better protect the rights of prisoners is an open question. Inmates may actually prefer a bright-line rule to one that provides prison officials more discretion. The debate is certainly not so one-sided that Stotts can hold up an alternative approach as proof that the current federal regulations are unreasonably restrictive.
III.
Both the requirement that a legal sender be specifically identified and the requirement that confidential mail be marked as such are “reasonably related to legitimate penological interests.” 482 U.S. at 89, 107 S.Ct. at 2261. They advance not only important security concerns, but administrative concerns as well. Stotts’ asserted rights are minimally compromised, if at all, by the current application of the regulations; he receives all his mail and the privacy of his legal communications can be assured at virtually no cost. Alternative approaches to the federal regulations pose their own set of problems, and as courts unversed in prison administration, we are loathe in any case to choose among them. Finding no constitutional violation in the challenged BOP procedures for processing prisoner mail, we reverse the magistrate judge’s judgment.
REVERSED.
. All citations are to the 1990 Code of Federal Regulations. The relevant sections have not been amended since 1986.
. Obviously, the approach used in North Carolina prisons is not before us. In declining to require the BOP to adopt it, we in no way intend to impugn its constitutional validity.
. Although this analysis focuses on the current application of the regulations, it applies as well to the regulations as interpreted in 1986.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer: |
songer_typeiss | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
STERLING DRUG INC. et al., Petitioners, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, and Alexander M. Schmidt, Commissioner of Food and Drugs, Respondents.
Nos. 623, 624, Dockets 73-1628, 73-2481.
United States Court of Appeals, Second Circuit.
Argued Feb. 1, 1974.
Decided May 2, 1974.
Memorandum Oct. 9, 1974.
William F. Weigel, New York City (James B. Swire, E. Carrington Bog-gan, Rogers, Hoge and Hills, New York City; James H. Luther, Jr., Roger M. Rodwin, of counsel), for Sterling Drug Inc.
Robert V. Allen, Dept, of Justice, Washington, D. C. (Howard S. Epstein, Asst. Chief, Consumer Affairs Section, Dept, of Justice, on the brief), for respondents.
Before MULLIGAN and WATERMAN, Circuit Judges, and BRYAN, District Judge.
Frederick van Pelt Bryan, of the Southern District of New York, sitting by designation.
FREDERICK van PELT BRYAN, District Judge:
In these consolidated appeals, Sterling Drug Inc. and its subsidiaries Winthrop Products, Inc. and Breon Laboratories, Inc. petition to set aside two orders of the Commissioner of Food and Drugs, dated March 2, 1973 and August 7, 1973. The orders, issued under the 1962 amendments to the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., denied petitioners’ requests for a hearing and withdrew prior approval of new drug applications for petitioners’ product, Alevaire, alleging lack of substantial evidence that the drug was effective for its recommended uses.
Alevaire is an aerosol prescription drug administered to patients with chronic respiratory diseases, to aid in the evacuation of mucous from the lungs. Alevaire is a solution of 0.125% tyloxapol, 2% sodium bicarbonate, 5% glycerine, and 92.875% water. Tyloxa-pol is described as the “active” muco-evacuant agent, while glycerine is a “stabilizer” and sodium bicarbonate acts to adjust the “pH factor” (alkalinity and acidity) in the lungs.
I.
Proceedings Before the FDA
Under the Federal Food, Drug and Cosmetic Act of 1938, no drug may be introduced into interstate commerce unless a New Drug Application (NDA), filed with the Food and Drug Administration (FDA), is in effect. The Act established procedures under which, after notice and hearing, the FDA could refuse to permit an NDA to go into effect or withdraw prior approval on the basis of evidence that the drug was unsafe for its intended use.
In 1962, the 1938 Act was amended to provide that the FDA could disapprove or withdraw prior approval of NDA’s, not only on evidence that the drug was unsafe for intended use but also if substantial evidence is lacking that the drug is effective for its intended use. Substantially the same requirements for notice and hearing are provided.
Pursuant to the Act, as amended, the FDA undertook the review of marketed drugs, including those for which NDA’s were in effect, for their therapeutic effectiveness. To aid it in this task, the FDA retained the National Academy of Sciences-National Research Council (NAS-NRC) to review the effectiveness for intended use of each approved drug.
NDA’s for Alevaire had been approved by the FDA in 1952, when only the safety factor was controlling. On July 17, 1968 the FDA notified petitioners that the NAS-NRC had reported that it rated Alevaire as “ineffective” and that the FDA concurred in that conclusion. Petitioners were advised that the FDA intended to institute proceedings to withdraw the approval previously given to petitioners’ NDA’s for Alevaire.
Pursuant to 21 U.S.C. § 355(e), formal “Notice of Opportunity for Hearing” was given to petitioners on December 1, 1969. The notice, after reference to the NAS-NRC report, advised petitioners that the FDA proposed to issue an order withdrawing approval of the NDA’s for Alevaire “on the grounds that there is a lack of substantial evidence that Alevaire has the effect which it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling thereof.” It further advised petitioners of their right to avail themselves of an opportunity for a hearing and to submit clinical and investigational data to show they were entitled to a hearing.
Under the FDA regulations, 21 C.F.R. 130.14(b), a hearing can be denied only if the petitioners fail to submit at least some evidence of the drug’s effectiveness stemming from adequate and well-controlled clinical investigations, 21 C.F.R. 130.12(a)(5)(ii). Petitioners duly submitted a written appearance requesting a hearing pursuant to 21 C.F.R. 130.14(b) together with a mass of evidence in support of the effectiveness of Alevaire. Petitioners’ submissions as to the effectiveness of Ale-vaire, in addition to contentions that the NAS-NRC report was mistaken in major respects, relied principally on two clinical studies made by physicians whose qualifications in this field were never questioned. These studies were primarily directed at the basic criticism in the NAS-NRC report that “This product is no more effective than water”. The first clinical study, by Doctors Miller and Paez (the Miller-Paez Study) concluded that Alevaire was effective as a muco-evacuant and superior to both water and saline. The other, by Dr. Cohen (the Cohen Study) compared Alevaire with water and concluded that Alevaire was a superior and effective muco-evacuant.
These studies were supported by affidavits from 10 physicians, knowledgeable and experienced in the field, that the Miller-Paez and Cohen Studies were “adequate and well-controlled” within the FDA requirements and established the effectiveness of Alevaire as a muco-evac-uant.
In addition, petitioners submitted affidavits from six physicians based on their own extensive clinical experience with Alevaire to the effect that the drug was effective, and more effective than the commonly used agents of water and saline, and summaries of some 150 articles in medical and scientific literature commenting favorably on Alevaire and its use as a muco-evacuant.
On August 27, 1971, the FDA issued an order denying the petitioners’ request for a hearing and withdrawing approval of petitioners’ NDA’s for Alevaire, primarily on the ground that the Miller-Paez and Cohen clinical studies were “not adequate and well-controlled”.
The petitioners thereupon filed an appeal from the order in this Court (Docket No. 71-1898) and filed their printed briefs and appendix. At that point the FDA terminated its August 27, 1971 order and moved in this Court to remand, conceding that it had failed to consider relevant material in petitioners’ submissions. It agreed to reconsider petitioners’ request for a hearing. The FDA’s motion to remand was granted by this Court over petitioners’ opposition on January 11, 1972.
A series of conferences and communications between the petitioners and the FDA ensued. On March 2, 1973, some 14 months after the petition to remand the first appeal had been granted, the FDA issued a second order again denying petitioners a hearing and withdrawing approval of the NDA’s for Alevaire.
Denial of the hearing was again based upon the ground that the Miller-Paez and Cohen studies were not adequate and well-controlled under the standards of 21 C.F.R. 130.12(a)(5)(ii). For the first time, the criticism was also voiced that water was not a proper “control” with which to compare Alevaire, but that the proper “control” was Ale-vaire minus tyloxapol.
On April 16, 1973, the petitioners requested the FDA to reconsider its March 2 order. They submitted to the FDA an extensive rebuttal of the grounds on which the order was based, which, in the light of subsequent events, was apparently well taken.
The petitioners also appealed to this Court seeking to set side the March 2, 1973 order (Docket No. 73-1628). On June 14, 1973, when its time to file the record was about to expire, the FDA terminated its March 2 order and reinstated its approval of the NDA’s for Al-evaire. The order of termination stated that upon reviewing the petition for reconsideration, the FDA had concluded that the requests for a hearing should be reevaluated. The FDA also moved to dismiss the pending appeal from the March 2 order. The petitioners opposed that motion, asserting they were entitled to a decision in their favor on the merits.
Then, on August 7, 1973, before the FDA’s motion to dismiss the appeal from the March 2, 1973 order was argued, the FDA issued a third order denying a hearing and withdrawing approval of the petitioners’ NDA’s for Ale-vaire. This third order abandoned the grounds on which the prior two orders of March 2, 1973 and August 27, 1971 had been based. It advanced an apparently new ground for withdrawal which had never been previously raised. The ground now announced was that Ale-vaire was a “fixed combination” drug and that the only studies which could demonstrate its effectiveness were studies which assessed “the contribution each of the three components of Alevaire makes to the claimed effectiveness of the drug”. The Miller-Paez and Cohen Studies were rejected as irrelevant to this theory.
Petitioners appealed to this Court seeking to set aside the third order of August 7, 1973 (Docket No. 73-2481). The FDA’s motion to dismiss petitioners’ appeal from the March 2, 1973 order was denied on November 9, 1973, and the appeal from that order was consolidated with the appeal from the subsequent August 7, 1973 order.
II.
The March 2, 1973 Order
The appeal from the March 2, 1973 order denying a hearing and withdrawing approval of the Alevaire NDA’s is in a curious posture. Subsequent to the taking of the appeal, the March 2 order was terminated by the FDA’s order of June 14, 1973 which granted petitioners’ application for reconsideration of their requests for a hearing and reinstated approval of the Alevaire NDA’s.
The respondents’ brief states: “We confessed error in that order [of March 2, 1973] before this Court on November 9, 1973 and petitioners objected. We again confess error, with the hope that petitioners will not look a gift horse in the mouth a second time.”
Concededly erroneous though it was, and despite the continuing pendency of the appeal, the March 2 order is no longer in force and effect. We fail to see what relief could be granted to petitioners under these circumstances. The appeal from the March 2, 1973 order must be dismissed as moot.
III.
The August 7, 1973 Order
The questions raised on this appeal, therefore, center on the August 7, 1973 order. That order, for the first time in the lengthy and more than a little confused proceedings before the FDA characterized Alevaire as a “fixed combination drug”.
The fixed combination drug classification was established on October 5, 1971 by regulation 21 C.F.R. 3.86 (some three years after the Alevaire proceeding had been commenced), in pursuance of a policy formulated initially by the NAS-NRC Drug Efficacy Study of 1969.
A fixed combination drug is one which combines “two or more drugs in a single dosage form” intended for “concurrent therapy.” The NAS-NRC study explained the reasons for the classification as follows:
The rating “ineffective as a fixed-combination” was brought into use to deal rationally with certain combinations of drugs, notably combinations of two or more antibiotics, one or more of which when administered alone is acknowledged to be effective for the cited indication. It is a basic principle of medical practice that more than one drug should be administered for the treatment of a given condition only if the physician is persuaded that there is substantial reason to believe that each drug will make a positive contribution to the effect he seeks. Risks of adverse drug reactions should not be multiplied unless there be overriding benefit. Moreover, each drug should be given at the dose level that may be expected to make its optimal contribution to the total effect, taking into account the status of the individual patient and any synergistic or antagonistic effects that one drug may be known to have on the safety or efficacy of the other. On these grounds, multiple therapy using fixed dose ratios determined by the manufacturer and not by the physician is, in general, poor practice.
The August 7, 1973 order withdrew approval of Alevaire upon the ground that no studies had been submitted to show that Alevaire was effective as a fixed combination drug. It rejected the Miller-Paez and Cohen Studies, about which the controversy had revolved up to that time, as irrelevant, on the ground that they did not demonstrate the effectiveness of Alevaire in terms of the claimed contribution each component made to the drug’s effectiveness.
Petitioners contend that they were entitled to notice of the specific grounds on which the FDA proposed to withdraw approval of the NDA’s for Alevaire; that no notice was given them of the “fixed combination” grounds on which the August 7 order was based, and that they were therefore precluded from submitting evidence of the drug’s effectiveness which would meet the criticisms expressed, for the first time, in that order. Thus, they urge, they were denied the opportunity to show that they were entitled to a hearing under the procedure provided by the statute and the FDA’s own regulations.
The statute, 21 U.S.C. § 355(e), provides that “after due notice and opportunity for hearing” approval of an NDA may be withdrawn “on the basis of new information before [the FDA] with respect to such drug, evaluated together with the evidence available when the application was approved, that there is a lack of substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling thereof.”
The regulation, 21 C.F.R. 130.14(a), spells out the due notice requirement as follows: “The notice to the applicant of opportunity for a hearing on a proposal by the Commissioner ... to withdraw the approval of an application will specify the grounds upon which he proposes to issue his order.”
On June 18, 1973, between the FDA termination of its March 2, 1973 order on June 14, 1973 and the issuance of its August 7, 1973 order, the Supreme Court decided Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). In that case the Supreme Court held that 21 U.S.C. § 355(e) and 21 C.F.R. 130.14 set up a type of summary judgment procedure in FDA administrative proceedings for the denial of NDA approval or withdrawal of such approval.
What the agency has said, then, is that it will not provide a formal hearing where it is apparent at the threshold that the applicant has not tendered any evidence which on its face meets the statutory standards as particularized by the regulations. 412 U.S. at 620.
Thus, the FDA may withdraw a drug from the market without a hearing when, and only when, “it appears conclusively from the applicant’s ‘pleadings’ that the application cannot succeed.” Id. at 621.
Prior to the issuance of the August 7 order, the petitioners had submitted extensive evidence of Alevaire’s effectiveness as a muco-evacuant to rebut the contention in the FDA notice that Ale-vaire was no more effective than water. Faced with the question of whether petitioners were entitled to a hearing on that issue under the Weinberger standards, the FDA then shifted its grounds to the new fixed combination theory in its August 7 order. That order was predicated on the Notice of Opportunity for Hearing of December 1, 1969 which was the only notice ever given to petitioners. The notice, in turn, was based on the FDA announcement of July 9, 1968 stating that the FDA concurred in the report of the NAS-NRC drug efficacy study group that Alevaire was ineffective because it was “no more effective than water”. While some general language was used, this was the only specific ground stated on which the FDA proposed to withdraw approval of the NDA’s for the drug. It was to this ground that the Miller-Paez and Cohen Studies and the other material submitted by the petitioners were directed.
Until August, 1973, the FDA apparently agreed that this was the issue before it. The objection to petitioners’ submission raised by the FDA was that the studies were not “adequate and well-controlled”. Both of the prior withdrawal orders, of August 27, 1971 and March 2, 1973, which the FDA itself terminated after they had been appealed from, were predicated on that ground.
The August 7, 1973 order was the first time the fixed combination theory had been injected into the proceedings. There was no mention of that theory as a ground for proposed withdrawal in the Notice of Opportunity for Hearing of December 1, 1969. Petitioners were never given a meaningful opportunity to submit studies or data to contravene that theory. Instead, they were arbitrarily denied the opportunity to which they were entitled to establish their right to a hearing on that ground.
The FDA argues that even if its notice to petitioners failed to specify the fixed combination theory as a ground for proposed withdrawal, nevertheless, the petitioners should somehow have inferred this and submitted evidence rebutting that theory. The FDA refers to various isolated excerpts from the record, such as general references to the labeling of Alevaire, in the December 1, 1969 Notice of Opportunity for Hearing, and the reference in its order of March 2, 1973 (which order it conceded was erroneous and withdrew) to a lack of tests comparing Alevaire to Alevaire minus its therapeutic agent tyloxapol.
In the light of this lengthy and confused record, this argument is wholly unpersuasive. What the argument amounts to is this — the petitioners should somehow have guessed whatever grounds for withdrawal the FDA might eventually come up with and therefore specification of the grounds for the proposed withdrawal required by the statute and regulation was unnecessary.
The petitioners were not required to indulge in such guesswork. They were entitled to notice of the specific grounds on which the FDA proposed to withdraw approval of the Alevaire NDA’s and to an opportunity to submit evidence which would entitle them to a hearing before an order of withdrawal could be validly issued. The order of August 7, 1973 denied a hearing and withdrew approval of Alevaire without such notice to petitioners and without giving them an opportunity for such submission. Viewed in the light of the extended prior proceedings and the two prior orders of withdrawal without a hearing on quite different grounds, terminated by the FDA only after petitioners had appealed to this Court, it is apparent that the FDA arbitrarily disregarded the requirements of the statute and its own regulations. The order of August 7, 1973 is invalid and must be set aside and the original approval of the NDA’s for Alevaire reinstated.
A similar result was reached by the District of Columbia Circuit in Hess & Clark v. Food and Drug Administration, 495 F.2d 975 (D.C.Cir.1974.)
Hess & Clark involved the procedures for withdrawal of approval of New Animal Drug Applications (NADA’s) under 21 U.S.C. § 360(b) and (e) and 21 C.F.R. 135.15 which parallel the provisions of 21 U.S.C. § 355(e) and- 21 C.F.R. § 130.14, applicable in the case at bar. On June 21, 1972 the FDA issued a Notice of Opportunity for Hearing specifying certain tests as the grounds for proposed FDA withdrawal of NADA’s for the drug diethylstilbestrol (DES) when used in the form of implanted pellets. The applicants requested a hearing and submitted evidence directed to the grounds specified in the notice. On June 27, 1973, without further notice, the FDA issued an order denying a hearing and withdrawing approval of the NADA’s for DES when so used. The order was based on a new test which first came to light in April, 1973 and was quite different from the tests which had been specified as the basis for proposed withdrawal in the Notice of Opportunity for Hearing. The applicants appealed from that order. The court pointed out:
[W]here the case is governed by a statutory requirement for hearing (there being no imminent hazard to health), that hearing is not to be denied in the absence of a fair opportunity to identify material issues that require a hearing, an opportunity that embraces a suitable notice of the basis on which the agency proposes to act summarily.
It held that the FDA had not given to the DES applicant notice specifying the nature of the facts and evidence on which it proposed to withdraw NADA approval, as required by the FDA summary judgment procedures; that the applicant had thereby been deprived of the opportunity to controvert the alleged facts and present material issues which would entitle it to a hearing; and that therefore the order withdrawing approval of the NADA’s for DES without a hearing was invalid. The order of withdrawal was set aside and the NADA approval which the order had attempted to withdraw was reinstated.
In the case at bar, the August 7, 1973 order withdrawing approval of Alevaire without a hearing likewise is fatally defective.
IV.
The Adequacy of the Fixed-Combination Ground
Petitioners also contend that the record demonstrates that Alevaire is not a “fixed combination” drug and therefore not subject to the rating “ineffective as a fixed combination” applied to it by the order of August 7, 1973. Petitioners urge that this Court so hold.
While there is little in the record now before us to support the proposition that Alevaire is a fixed combination drug within the meaning of 21 C.F.R. 3.86, it is not for this Court to pass on the question on this appeal. If the FDA proposes to withdraw approval of the NDA’s for Alevaire on the ground that it is ineffective as a fixed combination drug, it must follow the procedure required by the statute and regulations. It must give the petitioners notice of the specific grounds proposed for withdrawal, an opportunity to present evidence showing that they are entitled to a hearing, and a hearing if that is shown to be required. The FDA may then determine the question on a full and proper record, subject, of course, to petitioners’ right of appeal to this Court from an adverse determination.
The order of August 7, 1973 is set aside and the prior approval of the New Drug Applications for Alevaire by the FDA is reinstated. The appeal from the order of March 2, 1973 is dismissed as moot.
MOTION TO PUBLISH NOTICE OF REINSTATEMENT OF NEW DRUG APPLICATIONS
PER CURIAM:
Petitioners have moved for an order directing respondents (1) to publish notice of reinstatement of approval of the New Drug Applications for Alevaire in the Federal Register and (2) to remove a listing of Alevaire as “ineffective” from the “FDA Interim Index To Evaluations Published In The Federal Register For NAS-NRC Reviewed Drugs.”
Since the motion was made, the FDA has issued and published in the Federal Register a new “Notice of Opportunity for Hearing” on a proposal withdrawing approval of New Drug Applications for Alevaire, as it was permitted to do by our decision of May 2, 1974. The notice makes specific reference to that decision. The first branch of petitioners’ motion is denied.
The nature of the FDA Interim Index and the basis on which listings thereon are made were not before us and were not explored on the appeal. We did not pass on the propriety of the listing of Alevaire on that Index, either in footnote 14 of the opinion or otherwise. The second branch of petitioner’s motion is.denied without prejudice to such other remedies as may be available to the petitioners.
. The appeals are taken pursuant to 21 U.S. C. § 355(h).
. The NAS-NRC report stated that, “The clinical impression of the Panel is that this product is no more effective than water.”
The FDA’s notification included the following : “The Academy [the NAS-NRC] reports that . . . [Alevaire is] ineffective in that there is no evidence that tyloxapol . . . has any effect on secretions in the lung other than that of water in thinning secretions by simple dilution.” There was no question raised as to the safety of Alevaire nor has there been at any time; only the effectiveness of the drug for intended use has been questioned.
. 21 U.S.C. § 355(e) provides, in relevant part:
The Secretary shall, after due notice and opportunity for hearing to the applicant, withdraw approval of an application with respect to any drug under this section if the Secretary finds .
(3) on the basis of new information before him with respect to such drug, evaluated together with the evidence available to him when the application was approved, that there is a lack of substantial evidence that the drug will have the effect it pur-I>orts or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling thereof.
The authority in the Secretary (of Health, Education and Welfare) has been duly delegated to the Commissioner of Food and Drugs. 21 C.F.R. 2.120.
. 21 C.F.R. 130.14(b) provides:
“If the applicant elects to avail himself of the opportunity for a hearing he is required to file a written appearance requesting the hearing within 30 days after the publication of the notice and giving the reason why the application should not be refused or should not be withdrawn, together with a well-organized and full-factual analysis of the clinical and other in-vestigational data he is prepared to prove in support of his opposition to the notice of opportunity for a hearing. A request for a hearing may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine and substantial issue of fact that requires a hearing. When it clearly appears from the data in the application and from the reasons and factual analysis in the request for the hearing that there is no genuine and substantial issue of fact which precludes the refusal to approve the application or the withdrawal of approval of the application, e. g., no adequate and well-controlled clinical investigations to support the claims of effectiveness have been identified, the Commissioner will enter an order on this data, making findings and conclusions on such data. If a hearing is requested and is justified by the applicant’s response to the notice of a hearing, the issues will be defined, a hearing examiner will be named, and he shall issue a written notice of the time and place at which the hearing will commence, not more than 90 days after the expiration of such 30 days unless the hearing examiner and the applicant otherwise agree in the case of denial of approval, and as soon as practicable in the case of withdrawal of approval.”
. 21 C.F.R. 130.12(a) (5) (ii) attempts to define “adequate and well-controlled” studies. Several criteria are enumerated in an effort to separate those studies that are scientifically acceptable from those that are not. Only studies which meet the standards particularized in this regulation are acceptable in determining whether there is substantial evidence to support the claims of effectiveness for any drug. See Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 617-619, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973).
. In other words, a solution of 2% sodium bicarbonate, 5% glycerine and 93% water. The FDA had previously suggested that either water or Alevaire minus tyloxapol would be a proper “control”.
. This included material supporting the suitability of the controls used in petitioners’ clinical studies under 21 C.F.R. 130.-12(a) (5) (ii) (a) (4) (iii).
. 21 C.F.R. 3.86 provides, in relevant part: The Food and Drug Administration’s policy in administering the new-drug, antibiotic, and other regulatory provisions of the Federal Food, Drug and Cosmetic Act regarding fixed combination dosage form prescription drugs for humans is as follows :
(a) Two or more drugs may be combined in a single dosage form when each component makes a contribution to the claimed effects and the dosage of each component (amount, frequency, duration) is such that the combination is safe and effective for a significant patient population requiring such concurrent therapy as defined in the labeling for the drug.
. The August, 1973 order stated, in relevant part:
In the petition for reconsideration filed by the NDA holders following publication of the March 8, 1973 notice, the NDA holders took issue with every facet of the evaluations of the Miller-Paez and Cohen studies contained in that notice.
The Commissioner finds that certain criticisms delineated in the petition are well-founded when the investigations are ae-cepted at face value as is required in ruling upon the adequacy of a request for hearing under 21 C.F.R. 130.12(a)(5) and 130.14. However, the Commission also finds that another analysis of these two studies, which would take into account the several valid objections made in the petition for reconsideration, would be a meaningless and unnecessary endeavor. Even assuming that the studies are adequate and well-controlled investigations comparing Alevaire with other control substances, a conclusion not warranted by analysis of the investigations, the studies cannot demonstrate the effectiveness of Alevaire because their design precludes assessments respecting the contribution each of the three components of Alevaire makes to the claimed effectiveness of the drug.
. See Note 3, supra.
. It should be noted here that the Commissioner was aware as early as August of 1968 that petitioners’ studies would compare Ale-vaire with water, and those studies were submitted by June of 1970.
. Withdrawal of NDA approval on the fixed combination theory has been upheld in several cases. However, in each of these cases petitioners were given notice of that theory and the opportunity to submit evidence to rebut it. Pfizer, Inc. v. Richardson, 434 F.2d 536 (2d Cir. 1970); Upjohn Co. v. Finch, 422 F.2d 944 (6th Cir. 1970); American Cyanimid Co. v. Richardson, 456 F.2d 509 (1st Cir. 1971). These cases serve to emphasize the importance of the notice requirement.
. As Mr. Justice Powell said in his concurrence in Weinberger v. Ilynson, Westcott & Dunning, supra:
The public interest is twofold: (i) to remove from the market, in accordance with due process, drugs of no utility or effectiveness; and (ii) to retain on the market those drugs that are efficacious. In an understandable zeal to remove the former, an administrative agency must not overlook both the interest of the public and the right of the proprietor in protecting the drugs that are useful in the prevention, control or treatment of illness.
412 Ü.S. at 639, n. 2.
. Petitioners claim that, despite the prior reinstatements of the NDA’s for Alevaire, the drug has remained on an FDA “ineffective list” throughout the course of these lengthy proceedings. If this be so, we think that the present reinstatement should have the effect of removing Alevaire from such an ineffective list, as well.
. Cooper Laboratories, Inc. v. Commissioner, Federal Food & Drug Administration 501 F.2d 772 (D.C.Cir. April 19, 1974) is not germane to the notice issue presented here.
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: |
sc_adminaction | 053 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
SKINNER, SECRETARY OF TRANSPORTATION, et al. v. RAILWAY LABOR EXECUTIVES’ ASSOCIATION et al.
No. 87-1555.
Argued November 2, 1988
Decided March 21, 1989
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, and Scalia, JJ., joined, and in all but portions of Part III of which Stevens, J., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 634. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 635.
Attorney General Thornburgh argued the cause for petitioners. On the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Deputy Assistant Attorneys General Spears and Cynkar, Lawrence S. Robbins, Leonard Schaitman, Marc Rickman, B. Wayne Vance, S. Mark Lindsey, and Daniel Carey Smith.
Lawrence M. Mann argued the cause for respondents. With him on the brief were W. David Holsberry, Harold A. Ross, and Clinton J. Miller III.
Briefs of amici curiae urging reversal were filed for the American Public Transit Association by Donald T. Bliss; for the Bendiner-Sehle-singer Laboratory et al. by David G. Evans and William J. Judge; for the California Employment Law Council by Victor Schachter; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, Stephen C. Yohay, and Garen E. Dodge; for the National Railroad Passenger Corporation et al. by Erwin N. Griswold; for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso; for the Private Truck Council of America, Inc., et al. by Peter A. Susser, William H. Borghesani, Jr., G. William Frick, and Alan B. Friedlander; and for Thomas Colley et al. by John G. Kester, John J. Buckley, Jr., Stephen L. Urbanczyk, William C. Sammons, Stanley J. Glod, Charles I. Appier, Thomas L. Bright, Robert W. Katz, William L. Pope, and Bertram D. Fisher.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by James D. Holzhauer, John A. Powell, Stephen R. Shapiro, Harvey Grossman, and Edward M. Chen; and for the American Federation of Labor and Congress of Industrial Organizations by David Silberman and Laurence Gold.
Scott D. Raphael filed a brief for the Aircraft Owners & Pilots Association as amicus curiae.
Justice Kennedy
delivered the opinion of the Court.
The Federal Railroad Safety Act of 1970 authorizes the Secretary of Transportation to “prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety.” 84 Stat. 971, 45 U. S. C. § 431(a). Finding that alcohol and drug abuse by railroad employees poses a serious threat to safety, the Federal Railroad Administration (FRA) has promulgated regulations that mandate blood and urine tests of employees who are involved in certain train accidents. The FRA also has adopted regulations that do not require, but do authorize, railroads to administer breath and urine tests to employees who violate certain safety rules. The question presented by this case is whether these regulations violate the Fourth Amendment.
I
A
The problem of alcohol use on American railroads is as old as the industry itself, and efforts to deter it by carrier rules began at least a century ago. For many years, railroads have prohibited operating employees from possessing alcohol or being intoxicated while on duty and from consuming alcoholic beverages while subject to being called for duty. More recently, these proscriptions have been expanded to forbid possession or use of certain drugs. These restrictions are embodied in “Rule G,” an industry-wide operating rule promulgated by the Association of American Railroads, and are enforced, in various formulations, by virtually every railroad in the country. The customary sanction for Rule G violations is dismissal.
In July 1983, the FRA expressed concern that these industry efforts were not adequate to curb alcohol and drug abuse by railroad employees. The FRA pointed to evidence indicating that on-the-job intoxication was a significant problem in the railroad industry. The FRA also found, after a review of accident investigation reports, that from 1972 to 1983 “the nation’s railroads experienced at least 21 significant train accidents involving alcohol or drug use as a probable cause or contributing factor,” and that these accidents “resulted in 25 fatalities, 61 non-fatal injuries, and property damage estimated at $19 million (approximately $27 million in 1982 dollars).” 48 Fed. Reg. 30726 (1983). The FRA further identified “an additional 17 fatalities to operating employees working on or around rail rolling stock that involved alcohol or drugs as a contributing factor.” Ibid. In light of these problems, the FRA solicited comments from interested parties on a various regulatory approaches to the problems of alcohol and drug abuse throughout the Nation’s railroad system.
Comments submitted in response to this request indicated that railroads were able to detect a relatively small number of Rule G violations, owing, primarily, to their practice of relying on observation by supervisors and co-workers to enforce the rule. 49 Fed. Reg. 24266-24267 (1984). At the same time, “industry participants . . . confirmed that alcohol and drug use [did] occur on the railroads with unacceptable frequency,” and available information from all sources “suggested] that the problem included] ‘pockets’ of drinking and drug use involving multiple crew members (before and during work), sporadic cases of individuals reporting to work impaired, and repeated drinking and drug use by individual employees who are chemically or psychologically dependent on those substances.” Id., at 24253-24254. “Even without the benefit of regular post-accident testing,” the FRA “identified 34 fatalities, 66 injuries and over $28 million in property damage (in 1983 dollars) that resulted from the errors of alcohol and drug-impaired employees in 45 train accidents and train incidents during the period 1975 through 1983.” Id., at 24254. Some of these accidents resulted in the release of hazardous materials and, in one case, the ensuing pollution required the evacuation of an entire Louisiana community. Id., at 24254, 24259. In view of the obvious safety hazards of drug and alcohol use by railroad employees, the FRA announced in June 1984 its intention to promulgate federal regulations on the subject.
B
After reviewing further comments from representatives of the railroad industry, labor groups, and the general public, the FRA, in 1985, promulgated regulations addressing the problem of alcohol and drugs on the railroads. The final regulations apply to employees assigned to perform service subject to the Hours of Service Act, ch. 2939, 34 Stat. 1415, as amended, 45 U. S. C. § 61 et seq. The regulations prohibit covered employees from using or possessing alcohol or any controlled substance. 49 CFR §219.101(a)(1) (1987). The regulations further prohibit those employees from reporting for covered service while under the influence of, or impaired by, alcohol, while having a blood alcohol concentration of 0.04 or more, or while under the influence of, or impaired by, any controlled substance. §219.101(a)(2). The regulations do not restrict, however, a railroad’s authority to impose an absolute prohibition on the presence of alcohol or any drug in the body fluids of persons in its employ, §219.101(c), and, accordingly, they do not “replace Rule G or render it unenforceable.” 50 Fed. Reg. 31538 (1985).
To the extent pertinent here, two subparts of the regulations relate to testing. Subpart C, which is entitled “Post-Accident Toxicological Testing,” is mandatory. It provides that railroads “shall take all practicable steps to assure that all covered employees of the railroad directly involved . . . provide blood and urine samples for toxicological testing by FRA,” § 219.203(a), upon the occurrence of certain specified events. Toxicological testing is required following a “major train accident,” which is defined as any train accident that involves (i) a fatality, (ii) the release of hazardous material accompanied by an evacuation or a reportable injury, or (iii) damage to railroad property of $500,000 or more. §219.201 (a)(1). The railroad has the further duty of collecting blood and urine samples for testing after an “impact accident,” which is defined as a collision that results in a reportable injury, or in damage to railroad property of $50,000 or more. § 219.201(a)(2). Finally, the railroad is also obligated to test after “[a]ny train incident that involves a fatality to any on-duty railroad employee.” §219.201(a)(3).
After occurrence of an event which activates its duty to test, the railroad must transport all crew members and other covered employees directly involved in the accident or incident to an independent medical facility, where both blood and urine samples must be obtained from each employee. After the samples have been collected, the railroad is required to ship them by prepaid air freight to the FRA laboratory for analysis. § 219.205(d). There, the samples are analyzed using “state-of-the-art equipment and techniques” to detect and measure alcohol and drugs. The FRA proposes to place primary reliance on analysis of blood samples, as blood is “the only available body fluid . . . that can provide a clear indication not only of the presence of alcohol and drugs but also their current impairment effects.” 49 Fed. Reg. 24291 (1984). Urine samples are also necessary, however, because drug traces remain in the urine longer than in blood, and in some cases it will not be possible to transport employees to a medical facility before the time it takes for certain drugs to be eliminated from the bloodstream. In those instances, a “positive urine test, taken with specific information on the pattern of elimination for the particular drug and other information on the behavior of the employee and the circumstances of the accident, may be crucial to the determination of” the cause of an accident. Ibid.
The regulations require that the FRA notify employees of the results of the tests and afford them an opportunity to respond in writing before preparation of any final investigative report. See § 219.211(a)(2). Employees who refuse to provide required blood or urine samples may not perform covered service for nine months, but they are entitled to a hearing concerning their refusal to take the test. §219.213.
Subpart D of the regulations, which is entitled “Authorization to Test for Cause,” is permissive. It authorizes railroads to require covered employees to submit to breath or urine tests in certain circumstances not addressed by Sub-part C. Breath or urine tests, or both, may be ordered (1) after a reportable accident or incident, where a supervisor has a “reasonable suspicion” that an employee’s acts or omissions contributed to the occurrence or severity of the accident or incident, § 219.301(b)(2); or (2) in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding, § 219.301(b)(3). A railroad also may require breath tests where a supervisor has a “reasonable suspicion” that an employee is under the influence of alcohol, based upon specific, personal observations concerning the appearance, behavior, speech, or body odors of the employee. § 219.301(b)(1). Where impairment is suspected, a railroad, in addition, may require urine tests, but only if two supervisors make the appropriate determination, §219.301(c)(2)(i), and, where the supervisors suspect impairment due to a substance other than alcohol, at least one of those supervisors must have received specialized training in detecting the signs of drug intoxication, §219.301(c)(2)(ii).
Subpart D further provides that whenever the results of either breath or urine tests are intended for use in a disciplinary proceeding, the employee must be given the opportunity to provide a blood sample for analysis at an independent medical facility. § 219.303(c). If an employee declines to give a blood sample, the railroad may presume impairment, absent persuasive evidence to the contrary, from a positive showing of controlled substance residues in the urine. The railroad must, however, provide detailed notice of this presumption to its employees, and advise them of their right to provide a contemporaneous blood sample. As in the case of samples procured under Subpart C, the regulations set forth procedures for the collection of samples, and require that samples “be analyzed by a method that is reliable within known tolerances.” §219.307(b).
C
Respondents, the Railway Labor Executives’ Association and various of its member labor organizations, brought the instant suit in the United States District Court for the Northern District of California, seeking to enjoin the FRA’s regulations on various statutory and constitutional grounds. In a ruling from the bench, the District Court granted summary judgment in petitioners’ favor. The court concluded that railroad employees “have a valid interest in the integrity of their own bodies” that deserved protection under the Fourth Amendment. App. to Pet. for Cert. 53a. The court held, however, that this interest was outweighed by the competing “public and governmental interest in the . . . promotion of . . . railway safety, safety for employees, and safety for the general public that is involved with the transportation. ” Id., at 52a. The District Court found respondents’ other constitutional and statutory arguments meritless.
A divided panel of the Court of Appeals for the Ninth Circuit reversed. Railway Labor Executives’ Assn. v. Burnley, 839 F. 2d 575 (1988). The court held, first, that tests mandated by a railroad in reliance on the authority conferred by Subpart D involve sufficient Government action to implicate the Fourth Amendment, and that the breath, blood, and urine tests contemplated by the FRA regulations are Fourth Amendment searches. The court also “agre[ed] that the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant.” Id., at 583. The court further held that “accommodation of railroad employees’ privacy interest with the significant safety concerns of the government does not require adherence to a probable cause requirement,” and, accordingly, that the legality of the searches contemplated by the FRA regulations depends on their reasonableness under all the circumstances. Id., at 587.
The court concluded, however, that particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable. Ibid. A requirement of individualized suspicion, the court stated, would impose “no insuperable burden on the government,” id., at 588, and would ensure that the tests are confined to the detection of current impairment, rather than to the discovery of “the metabolites of various drugs, which are not evidence of current intoxication and may remain in the body for days or weeks after the ingestion of the drug.” Id., at 588-589. Except for the provisions authorizing breath and urine tests on a “reasonable suspicion” of drug or alcohol impairment, 49 CFR §§219.301(b)(1) and (c)(2) (1987), the FRA regulations did not require a showing of individualized suspicion, and, accordingly, the court invalidated them.
Judge Alarcon dissented. He criticized the majority for “failing] to engage in [a] balancing of interests” and for focusing instead “solely on the degree of impairment of the workers’ privacy interests.” 839 F. 2d, at 597. The dissent would have held that “the government’s compelling need to assure railroad safety by controlling drug use among railway personnel outweighs the need to protect privacy interests.” Id., at 596.
We granted the federal parties’ petition for a writ of certio-rari, 486 U. S. 1042 (1988), to consider whether the regulations invalidated by the Court of Appeals violate the Fourth Amendment. We now reverse.
II
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction. Camara v. Municipal Court of San Francisco, 387 U. S. 523, 528 (1967). See also Delaware v. Prouse, 440 U. S. 648, 653-654 (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976). Before we consider whether the tests in question are reasonable under the Fourth Amendment, we must inquire whether the tests are attributable to the Government or its agents, and whether they amount to searches or seizures. We turn to those matters.
A
Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. See United States v. Jacobsen, 466 U. S. 109, 113-114 (1984); Coolidge v. New Hampshire, 403 U. S. 443, 487 (1971). See also Burdeau v. McDowell, 256 U. S. 465, 475 (1921). A railroad that complies with the provisions of Subpart C of the regulations does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment. Petitioners contend, however, that the Fourth Amendment is not implicated by Subpart D of the regulations, as nothing in Sub-part D compels any testing by private railroads.
We are unwilling to conclude, in the context of this facial challenge, that breath and urine tests required by private railroads in reliance on Subpart D will not implicate the Fourth Amendment. Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government’s participation in the private party’s activities, cf. Lustig v. United States, 338 U. S. 74, 78-79 (1949) (plurality opinion); Byars v. United States, 273 U. S. 28, 32-33 (1927), a question that can only be resolved “in light of all the circumstances,” Coolidge v. New Hampshire, supra, at 487. The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Here, specific features of the regulations combine to convince us that the Government did more than adopt a passive position toward the underlying private conduct.
The regulations, including those in Subpart D, pre-empt state laws, rules, or regulations covering the same subject matter, 49 CFR §219.13(a) (1987), and are intended to supersede “any provision of a collective bargaining agreement, or arbitration award construing such an agreement,” 50 Fed. Reg. 31552 (1985). They also confer upon the FRA the right to receive certain biological samples and test results procured by railroads pursuant to Subpart D. §219.11(c). In addition, a railroad may not divest itself of, or otherwise compromise by contract, the authority conferred by Subpart D. As the FRA explained, such “authority ... is conferred for the purpose of promoting the public safety, and a railroad may not shackle itself in a way inconsistent with its duty to promote the public safety.” 50 Fed. Reg. 31552 (1985). Nor is a covered employee free to decline his employer’s request to submit to breath or urine tests under the conditions set forth in Subpart D. See § 219.11(b). An employee who refuses to submit to the tests must be withdrawn from covered service. See 4 App. to Field Manual 18.
In light of these provisions, we are unwilling to accept petitioners’ submission that tests conducted by private railroads in reliance on Subpart D will be primarily the result of private initiative. The Government has removed all legal barriers to the testing authorized by Subpart D, and indeed has made plain not only its strong preference for testing, but also its desire to share the fruits of such intrusions. In addition, it has mandated that the railroads not bargain away the authority to perform tests granted by Subpart D. These are clear indices of the Government’s encouragement, endorsement, and participation, and suffice to implicate the Fourth Amendment.
B
Our precedents teach that where, as here, the Government seeks to obtain physical evidence from a person, the Fourth Amendment may be relevant at several levels. See, e. g., United States v. Dionisio, 410 U. S. 1, 8 (1973). The initial detention necessary to procure the evidence may be a seizure of the person, Cupp v. Murphy, 412 U. S. 291, 294-295 (1973); Davis v. Mississippi, 394 U. S. 721, 726-727 (1969), if the detention amounts to a meaningful interference with his freedom of movement. INS v. Delgado, 466 U. S. 210, 215 (1984); United States v. Jacobsen, supra, at 113, n. 5. Obtaining and examining the evidence may also be a search, see Cupp v. Murphy, supra, at 295; United States v. Dionisio, supra, at 8, 13-14, if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable, see, e. g., California v. Greenwood, 486 U. S. 35, 43 (1988); United States v. Jacobsen, supra, at 113.
We have long recognized that a “compelled intrusio[n] into the body for blood to be analyzed for alcohol content” must be deemed a Fourth Amendment search. See Schmerber v. California, 384 U. S. 757, 767-768 (1966). See also Winston v. Lee, 470 U. S. 753, 760 (1985). In light of our society’s concern for the security of one’s person, see, e. g., Terry v. Ohio, 392 U. S. 1, 9 (1968), it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests. Cf. Arizona v. Hicks, 480 U. S. 321, 324-325 (1987). Much the same is true of the breath-testing procedures required under Subpart D of the regulations. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or “deep lung” breath for chemical analysis, see, e. g., California v. Trombetta, 467 U. S. 479, 481 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett v. Anchorage, 806 F. 2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F. 2d 1136, 1141 (CA3), cert. denied, 479 U. S. 986 (1986).
Unlike the blood-testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated:
“There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.” National Treasury Employees Union v. Von Raab, 816 F. 2d 170, 175 (1987).
Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.
In view of our conclusion that the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches, we need not characterize the employer’s antecedent interference with the employee’s freedom of movement as an independent Fourth Amendment seizure. As our precedents indicate, not every governmental interference with an individuál’s freedom of movement raises such constitutional concerns that there is a seizure of the person. See United States v. Dionisio, supra, at 9-11 (grand jury subpoena, though enforceable by contempt, does not effect a seizure of the person); United States v. Mara, 410 U. S. 19, 21 (1973) (same). For present purposes, it suffices to note that any limitation on an employee’s freedom of movement that is necessary to obtain the blood, urine, or breath samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches effected by the Government’s testing program. Cf. United States v. Place, 462 U. S. 696, 707-709 (1983).
I — f t — I I — !
A
To hold that the Fourth Amendment is applicable to the drug and alcohol testing prescribed by the FRA regulations is only to begin the inquiry into the standards governing such intrusions. O’Connor v. Ortega, 480 U. S. 709, 719 (1987) (plurality opinion); New Jersey v. T. L. O., 469 U. S. 325, 337 (1985). For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U. S. 675, 682 (1985); Schmerber v. California, 384 U. S., at 768. What is reasonable, of course, “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U. S. 531, 537 (1985). Thus, the permissibility of a particular practice “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U. S., at 654; United States v. Martinez-Fuerte, 428 U. S. 543 (1976).
In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. See United States v. Place, supra, at 701, and n. 2; United States v. United States District Court, 407 U. S. 297, 315 (1972). Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. See, e. g., Payton v. New York, 445 U. S. 573, 586 (1980); Mincey v. Arizona, 437 U. S. 385, 390 (1978). We have recognized exceptions to this rule, however, “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’” Griffin v. Wisconsin, 483 U. S. 868, 873 (1987), quoting New Jersey v. T. L. O., supra, at 351 (Blackmun, J., concurring
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer: |
songer_stpolicy | 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 state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Gordon W. TIBBETT, Appellant, v. Tracy A. HAND, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
No. 6661.
United States Court of Appeals Tenth Circuit.
July 5, 1961.
Thomas M. McComb, Jr., Denver, Colo., for appellant.
Charles N. Henson, Asst. Atty. Gen. of Kan. (William M. Ferguson, Atty. Gen. of Kan. and J. Richard Foth, Asst. Atty. Gen. of Kan., were with him on the brief), for appellee.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from an order discharging a writ of habeas corpus and remanding Tibbett, the petitioner, to the custody of the Warden.
Tibbett is confined in the Kansas State Penitentiary under a judgment of a Kansas state court, entered on December 20, 1957, sentencing him to imprisonment for a term of ten years on each of two counts of an information, each charging the offense of forgery, the sentences to run consecutively.
G.S.Kansas, 1957 Supp., 62-1304, insofar as here pertinent, reads:
“ * * * (a) If any person about to be arraigned upon an indictment or information for any offense against the laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and to give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. If he does ask to consult counsel of his own choosing, the court shall permit him to do so, if such counsel is within the territorial jurisdiction of the court. If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, * * *. A record of such proceeding shall be made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall be filed and made a part of the files in the cause. The substance of the proceedings provided for herein shall be entered of record in the journal and shall be incorporated in the journal entry of trial and judgment. * * * It is the duty of an attorney appointed by the court to represent a defendant, without charge to defendant, to inform him fully of the offense charged against him and of the penalty therefor confer with available witnesses, cause subpoenas to be issued for witnesses necessary or proper for defendant, and in all respects to fully and fairly represent him in the action. * *
The part, here pertinent, of the journal entry filed in the state court, which preceded the formal sentence, reads as follows:
“Now on the 17th day of December, 1957, * * * this cause comes on for hearing, the plaintiff appearing by Duane E. West, County Attorney, and the defendant appearing in person in the custody of the Sheriff with no attorney.
“The court is informed that the defendant does not have an attorney and the court interrogates the defendant as to whether or not he has funds with which to employ counsel and the defendant informs the court that he does not have funds with which to employ an attorney but that if counsel were appointed for him he would consult with such counsel and heed his advice. The court thereupon inquires of the defendant if he has any preference as to counsel if one were appointed for him and the defendant advises the court that he has no preference.
“Thereupon the court appoints Harrison Smith, a regular, competent, qualified and practicing attorney of the Finney County Bar to represent the defendant in this action.
“Thereafter, and on the 20th day of December, 1957, * * * this cause again comes on for hearing, the plaintiff appearing by Duane E. West, County Attorney, and the defendant appearing in person and by his attorney, Harrison Smith.
“Thereupon, the defendant informs the court, by his attorney, that he waives formal arraignment of the charges and desires to enter pleas of guilty to each count of the crimes as charged in the Information, * * * said crimes being that of forging and uttering a check.
“Counsel for the defendant informs the court that he has furnished the defendant with a copy of the Information filed in this cause and has explained the charges to defendant and discussed it with him; that he has fully advised the defendant as to the nature of the crimes with which he is charged, the penalties prescribed therefor and the possible sentence if, in fact, the defendant were upon jury trial found guilty of said offenses.
“Thereupon, the court interrogates the defendant as to his knowledge of the offenses charged, the penalties prescribed therefor, and as to defendant’s desire to enter a plea of guilty to both counts as charged. Defendant informs the court that he is well aware of the offenses, the penalties prescribed therefor, and his right to trial by jury on said charges and that it is still his desire that his pleas of guilty to the counts be accepted by the court. Thereupon the court announces that the pleas offered by the defendant are accepted and the court then inquires of defendant and of his attorney if they or either of them, have any reason to give why sentence should not now be passed upon the defendant and no reason is given.”
In his application for the writ Tibbett alleged that “the Court Reporter was not present and did not take her official notes in shorthand of all the proceedings of the Arraignment and appointment of Counsel which was had on the 17th day of December, 1957”;
That “The trial Court accepted a plea of guilty by the Court appointed Counsel for Petitioner, * * * who was appointed over * * * the objections of the Petitioner and did not have the consent of the Petitioner to enter * * * such plea”;
And that “The Court Reporter was not present and did not take her official shorthand notes of all” the sentencing proceedings “had on the 20th day of December, 1957.”
The Warden attached to his return to the writ as Exhibit A duly certified copies of the journal entry of judgment and other records in the state court and incorporated them into the return by reference.
At the hearing below in the instant case Tibbett testified that when he appeared in court on December 17, 1957, the court asked him if he “had any counsel” and that he told the court he wanted a Mr. Fleming. During the hearing in the instant case Tibbett was asked by the court, “Did you desire to employ Mr. Fleming as your counsel, * * * or did you want the court to appoint Mr. Fleming as your counsel,” to which Tibbett replied, “The court asked me if I had a preference to a counsel and I said ‘yes, sir,’ that I would like to have Mr. Fleming.” Tibbett further testified that the court then stated Mr. Fleming had more matters than he could handle and that he would appoint Harrison Smith as counsel for Tibbett. Tibbett further testified that he then stated: “Would it be asking too much of the court to call Mr. Fleming and ask him if he will accept my case,” and that the court replied that would not be necessary because he knew Fleming already had more than he could handle.
Tibbett further testified that Smith did not have Tibbett’s consent to enter pleas of guilty for him.
On cross-examination Tibbett testified that when he appeared in the state court on December 17, 1957, the judge advised him of his right to counsel. Further, on cross-examination, in response to the question of whether he asked the court to appoint Fleming or whether he wanted to employ Fleming, Tibbett testified that the state judge asked him if he “had a preference for a counsel and I said, ‘yes, sir, I would like to have Mr. Fleming.’ ”
Following his conviction and confinement under the state court sentence, Tibbett filed a petition for a writ of habeas corpus in the District Court of Leavenworth County, Kansas. His petition was denied. On appeal the order denying the writ was affirmed. Tibbett v. Hand, 185 Kan. 770, 347 P.2d 353, 355, certiorari denied 363 U.S. 854, 80 S.Ct. 1634, 4 L.Ed.2d 1736. The alleged grounds for the writ in the state court were that the official court reporter did not make and transcribe the notes of the proceedings on December 17, 1957, at which Smith was appointed counsel for Tibbett, and did not make and transcribe the notes of the arraignment, plea and sentencing proceedings of December 20, 1957.
In the opinion in Tibbett v. Hand, supra, the court said that Tibbett attached to his petition for the state court writ “A transcript prepared by the official court reporter showing the appointment of counsel for appellant in the district court of Finney County, [Kansas, which,] omitting the caption, read:
“ ‘Appearances: For the State— Duane E. West, County Attorney. For the Defendant — In Person.
“ ‘The Court: Let the record show that the defendant is without counsel; that the defendant is without funds with which to employ counsel; that the defendant desires that the Court appoint counsel to represent him in this action; that the defendant has been informed by the Court of his right to trial by a jury, and that the Court appoints Harrison Smith, a duly licensed and practicing attorney within the Thirty-Second Judicial District, as counsel for the defendant in this action.
“‘Date: December 17, 1957.’”
In its opinion the court further said:
“In his brief, among other things, the appellant charges that he did tell the court he had preference to an attorney but was denied that preference, and that he ‘never did plead guilty but was plead guilty by one Harrison Smith, Court appointed attorney who was appointed by the Court over the protests of defendant.’
“Assuming the charges set forth in the appellant’s brief are properly before the court, they are the uncorroborated statements of the appellant. This court is committed to the rule that the unsupported and uncorroborated statements of a petitioner in a habeas corpus proceeding do not .sustain the burden of proof or justify the granting of his writ where the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P.2d 1081; and cases cited therein.”
The court further set forth the journal entry of the sentencing court referred to above and stated that it fully disclosed the proceedings in the sentencing court on December 17 and December 20, 1957. The court held that even though the record made by the court reporter of the December 17, 1957, proceedings was insufficient and that the court reporter made no record of the December 20, 1957, proceedings, that in view of the record of the proceedings set forth in the journal entry, the failure of the court reporter was a mere irregularity which was not sufficient to vitiate the proceedings, and quoted with approval from the opinion in Goetz v. Hand, 185 Kan. 788, 347 P.2d 349, certiorari denied 362 U.S. 981, 80 S.Ct. 1068; 4 L.Ed.2d 1016, decided the same day as the Tibbett case, the following:
“ ‘In a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of G.S.1957 Supp., 62-1304, (specified in Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225), insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent habeas corpus action are insufficient to overcome this evidence. The failure of the court reporter to be present and make a record of the proceedings under such circumstances is merely an irregularity which is not sufficient to vitiate the proceedings.’ ”
We conclude, therefore, that the failure of the court reporter to comply fully with the provisions of § 62-1304, supra, did not, under the law of Kansas, deprive the state court of jurisdiction.
The question remains whether the failure of the court reporter to take verbatim notes and make a complete transcript of the proceedings of December 17, 1957, and the failure of the court reporter to take notes or make a transcript of the proceedings of December 20, 1957, when in some criminal cases in the State of Kansas notes of the proceedings and transcripts thereof are made and provided in strict accordance with the requirements of § 62-1304, supra, deprived Tibbett of the equal protection of the laws under the Fourteenth Amendment.
We are of the opinion the question must be answered in the negative for four reasons: First, because there was available to Tibbett the journal entry of trial and judgment containing the substance of the proceedings provided for in § 62-1304, supra, which was duly entered of record; Second, because, there being absent any charge of fraud, such journal entry record of the proceedings imported verity and was not open to challenge in a collateral proceeding by parol testimony; Third, because Tibbett’s own testimony shows that he was not denied counsel of his own choosing, but was merely denied appointment by the court of counsel which he preferred, for adequate reasons given by the trial court; and Fourth, because Tibbett, when the court-appointed counsel entered pleas of guilty for him, stood by and raised no objections, and, immediately prior to the imposition of sentence, the state court, among other things, interrogated Tibbett with respect to his knowledge of the offenses charged, the penalties prescribed therefor, his right to trial by jury, and his desire to enter a plea of guilty to each count, and Tibbett informed the court that he was well aware of the offenses, the penalties prescribed, and his right to trial by jury and that it was still his desire that his plea of guilty to each count “be accepted by the court.”
At the hearing below Tibbett admitted that at the proceedings on December 17, 1957, the state court advised him of his right to counsel for his defense and his testimony in the instant case did not refute the recital in the transcript of the proceedings filed by the court reporter and the import of the recitals in the journal entry that Tibbett requested the court to appoint counsel for him and that it was in the course of the appointment of counsel for Tibbett by the court that the court asked him if he had any preference as to counsel. On the contrary, his testimony tended to corroborate the recitals in the court reporter’s transcript and the journal entry. There could have been no reason for the inquiry as to Tibbett’s preference if the state court was not about to appoint counsel for Tibbett. Two times in his testimony below, Tibbett was asked whether he desired to employ Fleming as counsel or whether he desired the court to appoint Fleming as his counsel, and both times he evaded a direct answer and said that the court asked him if he had a preference as to counsel and he replied he would like to have Mr. Fleming. The constitutional guaranty to be represented by counsel does not confer upon the accused the right to compel the court to appoint such counsel as the accused may choose. On the contrary, the selection of counsel to be appointed for an accused rests in the sound discretion of the court.
The fact that Tibbett stood mute when his court-appointed counsel entered pleas of guilty for him in the state court and the fact that he failed to deny at the hearing in the instant case that in response to the inquiries of the state court immediately prior to imposition of sentence he has stated he was “well aware of the offenses, the penalties prescribed therefor and his right to trial by jury” and that it was “still his desire that his pleas of guilty to the counts be accepted by the court,” as recited in the journal entry of judgment, preclude a contention by Tibbett that the pleas of guilty entered for him by his counsel were without his consent. Moreover, there was a presumption that in entering pleas of guilty, Tibbett’s court-appointed counsel acted properly and with Tibbett’s consent.
Accordingly, we conclude that if the court reporter had made a complete record of the proceedings of December 17 and December 20, 1957, and had transcribed the same, on this record there is no basis for a contention that such transcript would have contradicted the facts recited in the transcript which the court reporter did make, or the recitals of fact set forth in the journal entry judgment filed in the state court.
We conclude that the record of the proceedings of December 17 and December 20, 1957, set forth in the state court journal entry, which was available to Tibbett, fully met the requirements of the Fourteenth Amendment that he be accorded the equal protection of the laws.
Affirmed.
. The journal entry was approved by Smith, as counsel for Tibbett, and by the County Attorney.
. See Thomas v. Hunter, 10 Cir., 153 F.2d 834.
. Tibbett further testified that when the pleas of guilty were entered he did not say anything.
. Griffiths v. United States, Ct.Cl., 172 F.Supp. 691, certiorari denied 361 U.S. 865, 80 S.Ct. 128, 4 L.Ed.2d 107; Schuble v. Youngblood, 225 Ind. 169, 73 N.E.2d 478; People v. Fanning, Co.Ct., 73 N.Y.S.2d 68; State v. Rinaldi, 58 N.J.Super. 209, 156 A.2d 28; State v. Whitaker, Mo., 312 S.W.2d 34.
. Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 876, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genresp1 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Horst VON HENNIG, Ancillary Executor of the Estate of Carlo von Wedekind, Deceased, Appellant, v. Robert F. KENNEDY, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellee. Robert F. KENNEDY, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant, v. Horst VON HENNIG, Ancillary Executor of the Estate of Carlo von Wedekind, Deceased, Appellee.
Nos. 16199, 16201.
United States Court of Appeals District of Columbia Circuit.
Argued May 15, 1961.
Decided Oct. 19, 1961.
Petition for Rehearing Denied Dec. 11, 1961.
Petition for Rehearing En Banc Denied En Banc Dec. 11, 1961.
Mr. James H. Mann, Washington, D. C., with whom Mr. John W. Pehle, Washington, D. C., was on the brief, for appellant in No. 16,199 and appellee in No. 16,201.
- Mr. Irving Jaffe, Atty., Dept, of Justice, with whom Mrs. Mary P. Clark, Atty., Dept, of Justice, was on the brief, for appellee in No. 16,199 and appellant in No. 16 201
Before EDGERTON, WASHINGTON, and BASTIAN, Circuit Judges.
PER CURIAM.
The plaintiff executor of Carlo von Wedekind has appealed from a judgment of the District Court dismissing on the merits an action to recover certain property vested by the Alien Property Custodian on the ground that plaintiff’s decedent was not authorized by Section 9 (a) of the Trading with' the Enemy Act of 1917, 40 Stat. 419, as amended, 50 U.S.C.A.Appendix, § 9(a), to claim the vested property because he was resident outside the United States (in Switzerland) and doing business in Italy during the war years, and was an “enemy” as defined in Section 2(a) of the Act, 50 U.S.C.A.Appendix, § 2(a). The District Court’s findings of fact and conclusions of law are reported at 1960, 187 F.Supp. 914.
We bave viewed with care the record and aPPebant s contentions. We are unabIe to sa^that the District Court clearly erred in its findings or was wrong in its conclusions.
There is abundant evidence that planitiff’s decedent, the original plaintiff, exercised exclusive supervision for himself and the other owner over the firm of Carlo Wedekind & Company, a societa, in name collettivo doing business in Italy, though he may not have followed in detail the operations of the business. In addition to the matters referred to by the District Court, the record shows that he fixed the remuneration of Mueller, the firm’s manager in Italy, and insofar as ? “volved a monthly bonus of 200 Swiss francs’ Paid jt himself (apparently all d”mg tbe war years? through Fides a °W1SS firm which he dominated and controlled. As late as 1940 he advanced needed funds to the Italian firm; Mueller received instructions pr direetives for running the firm only from him; prior to the outbreak of the war in Europe, he made frequent visits to Italy to confer with Mueller about the firm’s business. It seems also that he must bave retained continuing power to revoke the authority delegated to Mueller and to aPPoint a new manager. The original Plaintiff s active supervision of the business Pperi to the war was dearly sbown exdst> and although during the war period his visits to Italy ceased and his correspondence with Mueller was perhaps more limited, he did not show that his powers of supervision over the business were materially changed. And he admittedly had unlimited personal liability for the firm’s debts, malting his identity with its business even clearer. We think that under all the circumstances the original plaintiff could properly be found to be doing business in Italy during wartime, and hence to be an “enemy” under the Act. Cf. The William Bagaley, 1866, 5 Wal. 377, 72 U.S. 377, 18 L.Ed. 583.
The judgment ia
Affirmed.
. The Government filed a protective cross-appeal with respect to the District Court’s bolding that the original plaintiff was not doing business in Germany during the war years. In view of our conelusion on the principal appeal, it is unnecessary to decide the questions raised in tbe cross-appeal No. 16,201.
. The record contains two letters from Mueller to plaintiff written in 1940, one written in 1941, one written in 1942, and one written in 1943. It also contains a letter from plaintiff to Mueller written in 1941. These letters refer to others which are not in evidence.
. Compare Uebersee Finanz-Korporation v. Brownell, D.C.D.C.1955, 133 F.Supp. 615, 620, affirmed sub nom. von Opel v. Brownell, 100 U.S.App.D.C. 341, 244 F.2d 789, certiorari denied, 1957, 355 U.S. 878, 78 S.Ct. 141, 2 L.Ed.2d 108.
. A societa 'in name collettivo■ — such 'as the firm here involved — is neither a partnership nor a corporation under Italian-law, according to the testimony of the ' expert witnesses; in addition to provi- . sion for it, Italian law provides for gen- . eral partnerships, corporations limited in shares (or closely held corporations), and general stock' corporations. As the District Court pointed out, the societa has some characteristics of corporations under American law concepts, but because of its unlimited personal liability feature, it- is 'far more analogous to a partnership. "• ' ■
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_state | 56 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Robert THOMAS and Susan B. Thomas, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 16838.
United States Court of Appeals Fifth Circuit.
April 17, 1958.
E. Snow Martin (of Bryant, Martin & Kibler), Lakeland, Fla., John J. Trenam, Sherwin P. Simmons (of Fowler, White, Gillen, Yancey & Humkey), Tampa, Fla., for appellant.
Charles K. Rice, Asst. Atty. Gen., Robert N. Anderson, John N. Stull, Karl Schmeidler, Lee A. Jackson, Attys., Dept. of Justice, Nelson P. Rose, Chief Counsel, Int. Rev. Serv., John M. Morawski, Spl. Atty., Int. Rev. Serv., Washington, D. C., for respondent.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
JONES, Circuit Judge.
The appellants, Robert Thomas, sometimes here called the taxpayer, and his wife, Susan B. Thomas, filed a joint income tax return for 1950. We have for review a determination of their tax liability for that year made by the Tax Court. Thomas v. Commissioner, 28 T.C. 1. The taxpayer grew up in the phosphate producing area of Florida and, over the years, acquired a knowledge of phosphate, the manner of locating it, and an acquaintance with the phosphate prospectors of the vicinity. In 1946 he was released from active duty with the Navy and took over the operation of a ranch of nearly twelve thousand acres owned by his father. This ranch he purchased in 1948. In the latter part of 1947 the taxpayer became a registered real estate broker and had his name on the door of the office of his father, who was an active real estate broker, and had a desk in his father’s office. He was not associated with his father in the real estate brokerage business and, except for the transactions here discussed, the taxpayer did not engage in the business of real estate broker.
In 1947 and 1948 the taxpayer was employed for a couple of phosphate prospecting jobs. While engaged in this work he was asked by F. L. Holland, who owned sixty acres of land at Homeland, Florida, to explore it for phosphate. This the taxpayer did. Holland took care of the taxpayer’s out-of-pocket costs but paid him nothing for his services. Phosphate was found on the land. The area was too small to be of interest to a producer. Holland and the taxpayer discussed the putting together of enough land to interest one of the several phosphate mining companies in the area. They interested M. C. Peters who bought one eighty-acre tract. Holland, Peter» and the taxpayer bought a tract of about fifty acres. Holland and the taxpayer purchased two parcels, one of twenty and the other of sixty acres. The taxpayer, individually, acquired a small parcel of eleven or twelve acres. On two tracts the taxpayer had an arrangement with the owners that their lands might be included in any sale that was made and if sold the taxpayer would receive a commission. These eight parcels of land formed a contiguous block and were known as the Homeland Assembly.
On his own behalf and for the others who had ownership interests in the Assembly, the taxpayer had conferences with representatives of International Minerals & Chemical Corporation looking to the sale of the properties. Options were given to International. It conducted prospecting operations. Its decision regarding the acquisition of the Assembly was delayed by the absence of some of its executives from the country. It elected to purchase and on March 3, 1950, the sale of the several tracts to International was concluded. The taxpayer and Holland negotiated for another tract adjacent to those in the Assembly. Because of a defective title this parcel was not acquired until August 10, 1950. It was contemplated that if this parcel was purchased by the taxpayer and another or others it would be sold to International. It was sold to International in 1951. In February, 1950, the taxpayer and others bought a piece of phosphate-bearing land about a mile from the Homeland Assembly. This land was sold in 1952. The taxpayer received a commission on the sale of two parcels of the Assembly in which he had no proprietary interest. In his income tax return for 1950 he reported these commissions as ordinary income. His portion of the profits on the sale of the lands owned by him or in which he had an ownership interest was returned as long-term capital gains.
On his income tax returns the taxpayer listed his occupation in various ways. In 1948 his business was listed as “Ranch owner and Misc. Activities”; in 1949 it was listed as ^'Cattle Raising, and' Timber Growing (combined)”; in 1950' he described himself on the face of the return as “Real Estate Broker”; and on the schedule of profit from business he designated his business as “Real Estate Broker (Rancher)”; in 1951 this order was reversed and the face of the return showed him to be “Real Estate Broker— Rancher”; and on the schedule he referred to the business as “Registered Real Estate Broker”; and the same designations were followed in 1952.
The Commissioner of Internal Revenue concluded that the sale by the taxpayer-of his interest in the Homeland Assembly was of “property held by the taxpayer primarily for sale to customers in the ordinary course of trade or business” and taxable as ordinary income under 26 U.S.C.A. (I.R.C.1939) § 117(a) (1). A deficiency was determined by the Commissioner. The Tax Court sustained the Commissioner and we have its decision before us for review
We need not again set forth the usual applicable tests in resolving cases of this kind. See Smith v. Dunn, 5 Cir., 1955, 224 F.2d 353;. Gamble v. Commissioner, 5 Cir., 1957, 242 F.2d 586. Nor need we labor the point that such eases are primarily fact cases. King v. Commissioner, 5 Cir., 1951, 189, F.2d 122, certiorari denied 342 U.S. 829, 72 S.Ct. 54, 96 L.Ed. 627; Lobello v. Dunlap, 5 Cir., 1954, 210 F.2d 465; Smith v. Dunn, 5 Cir., 1955, 224 F.2d 353; Consolidated Naval Stores Co. v. Fahs, 5 Cir., 1955, 227 F.2d 923. It is the total fact situation which is controlling rather than, in the usual case, specific factors. Consolidated Naval Stores Co., v. Fahs, supra; Smith v. Commissioner, 5 Cir., 1956, 232 F.2d 142. In the case before us there is no basic disagreement as to the eviden-tiary facts. In such situation, as has been said on several occasions, if the conclusion of the trial court as to the ultimate' fact is merely, as here, a product of legal, reasoning, that conclusion is subject to appellate review free from the restraint of the clearly erroneous rule. Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217; Goldberg v. Commissioner, 5 Cir., 1955, 223 F.2d 709; Consolidated Naval Stores Co. v. Fahs, supra; Smith v. Commissioner, supra; Fahs v. Taylor, 5 Cir., 1956, 239 F.2d 224; Gamble v. Commissioner, supra.
The evidence justifies, perhaps requires, the conclusion that the taxpayer’s interest in the Homeland Assembly Was acquired for sale and was being held for sale at the time it was sold. While the purpose for which property is purchased is a factor for consideration, the purchase and holding of land for sale does not, per se, require a determination that the property was held in the ordinary course of the trade or business of the purchaser. Fahs v. Crawford, 5 Cir., 1947, 161 F.2d 315. As in many of the cases there are, in this case, factors casting weight upon each side of the question. Consolidated Naval Stores Co. v. Fahs, supra.
It has been held that the statement in a tax return of a taxpayer’s business as “real estate, ranching and investments” is an admission against interest in a capital gains case. White v. Commissioner, 5 Cir., 1949, 172 F.2d 629. Cf. Consolidated Naval Stores Co. v. Fahs, supra, Thomas did not show his occupation as Real Estate. He designated himself as a Real Estate Broker or’ as a Registered Real Estate Broker. “A broker is one whose occupation it is to bring parties together to bargain, or to bargain for them in matters of trade, commerce, or navigation. He is essentially a middleman or go-between.” New Roads Oilmill & Mfg. Co. v. Kline, Wilson 6 Co., 5 Cir., 1907, 154 F. 296. The Florida statute under which the taxpayer was registered and licensed provides that -x- * nor s}!aii the term broker or salesman be applied to a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify Fla.Stat.Ann. § 475.01. The taxpayer, as a real estate broker, received commissions on the sales of the Snell and Gassett tracts and these were returned by him for taxation as ordinary income. Not infrequently are real estate brokers in the business of buying and selling for their own account, but one who acts as a broker with respect to lands of another does not, merely by reason of so doing, become engaged in the holding of similar and related property for sale in the ordinary course of trade or business. The procurement of a real estate broker’s license, and the absence of such a license, have been considered and commented upon in resolving questions such as the one before us. White v. Commissioner, supra; Fahs v. Crawford, supra; Delsing v. United States, 5 Cir., 1951, 186 F.2d 59. In the entire pattern of events out of which this controversy arises the designation of the taxpayer on his income tax returns and his procurement of a real estate broker’s license are of little significance in fixing the character of the holding of the property of the taxpayer sold by him.
The relation of the taxpayer’s income from real estate sales to his total income is stressed by the Commissioner as a factor. Gamble v. Commissioner, supra. The disparity is not controlling, The taxpayer’s ranching business was an enterprise upon which the taxpayer had only recently embarked and it had not, so his testimony showed, as yet reached the stage of substantial earnings. Here the real estate profits which the Commissioner would compare With other income were present only in one year and were realized out of a single venture, so that the comparison of these profits with total income has little persuasive weight. Cf. Delsing v. United States, supra.
The conduct of the enterprise stretched over a three-year period. The taxpayer's time consumed was, as stated in the Tax Court’s opinion, “relatively small when compared with the over-all lapse of time from the beginning of the venture until it was closed.” There were few potential purchasers for the property and there was but a single sales transaction. The taxpayer acquired one parcel of land and an undivided interest in each of three others. This enterprise was not recurring but was the only operation of its kind in which the taxpayer had participated. Frequency and continuity of sales transactions have been regarded as important tests. If we regard the purchase transactions as the equivalent of sales for the purpose of applying the test, we would still be unable to avoid the conclusion that the taxpayer’s transactions were not such as to constitute a business. See Dunlap v. Oldham Lumber Co., 5 Cir., 1950, 178 F.2d 781; Fahs v. Crawford, supra; Smith v. Dunn, supra.
The situation here, as we see it, is that the taxpayer entered upon a speculative investment. With some help, financial and otherwise, he put together the Assembly, and had about a sixth interest in it. It was a non-recurring venture. The Assembly, although composed of several parcels of land, could be regarded as a single entity in the sale. Robert Thomas was not engaged in an occupational undertaking which required the habitual devotion of time, attention or effort with substantial regularity. Fahs v. Crawford, supra; Dunlap v. Oldham Lumber Co., supra.
The determination of the Tax Court that the taxpayer’s interest in the Homeland Assembly was property held primarily for sale to customers in the ordinary course of his trade or business was, we conclude, clearly erroneous. For the entry of a judgment in keeping with this conclusion, the judgment appealed from is
Reversed and remanded.
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: |
sc_lcdisagreement | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. MORTON
No. 83-916.
Argued April 25, 1984
Decided June 19, 1984
Michael W. McConnell argued the cause pro hac vice for the United States. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, Leonard Schaitman, Wendy M. Keats, and Mary S. Mitchelson.
Kaletah N. Carroll argued the cause and filed a brief for respondent.
Dan M. Kinter filed a brief for Sacramento County, California, et al. as amici curiae urging reversal.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether the United States is liable for sums withheld from the pay of one of its employees because it complied with a direction to withhold those sums contained in a writ of garnishment issued by a court without personal jurisdiction over the employee.
On December 27, 1976, respondent, a Colonel in the United States Air Force, was stationed at Elmendorf Air Force Base in Alaska. On that date Elmendorf’s Finance Office received by certified mail a writ of garnishment, accompanied by a copy of a judgment against respondent that had been issued by the Circuit Court for the Tenth Judicial Circuit of Alabama in a divorce proceeding. The writ, which was in the regular form used in Alabama, directed the Air Force to withhold $4,100 of respondent’s pay to satisfy sums due under the judgment “for alimony and child support.” The Finance Office promptly notified respondent that it had received the writ. On advice from an Air Force attorney, respondent told the Finance Office that the state court’s order was void because the Alabama court had no jurisdiction over him. Nevertheless, the Finance Officer honored the writ and paid $4,100 to the Clerk of the Alabama court, deducting that amount from respondent’s pay. Subsequently additional writs of garnishment were served on the Air Force with similar results.
Respondent apparently never made any attempt to contest the garnishment itself beyond his initial protest to the Elmendorf Finance Office. Eventually, however, he in ef-feet collaterally attacked the garnishment by bringing this action against the United States to recover the amounts that had been withheld from his pay and remitted to the Alabama court. The Government took the position that it had a complete defense since Congress has by statute provided:
“Neither the United States, any disbursing officer, nor governmental entity shall be liable with respect to any payment made from moneys due or payable from the United States to any individual pursuant to legal process regular on its face, if such payment is made in accordance with this section and the regulations issued to carry out this section.” 42 U. S. C. §659(f).
The trial judge first noted that the Alabama writ was on the regular form used by the Alabama courts. Thus, he did not disagree with the Government’s position that the writ was “regular on its face” within the meaning of the statute. He held, however, that the writ was not “legal process” within the meaning of § 659(f) because the statutory definition of that term requires that it be issued by a “court of competent jurisdiction.” He reasoned that the portion of the divorce decree ordering respondent to make alimony and child support payments had not been issued by a court of competent jurisdiction because the Alabama court did not have personal jurisdiction over respondent. Since respondent was not domiciled in Alabama at the time of the divorce proceedings, and since Alabama did not then have a statute authorizing personal service on nonresidents for child support or alimony and could not assert jurisdiction under either its own law or the Due Process Clause because it lacked sufficient contacts with respondent, the trial judge concluded that the Alabama judgment on which the garnishment orders were based was void for lack of jurisdiction. Accordingly, the trial judge held that respondent was entitled to recover the amounts withheld from his pay from the United States.
The Court of Appeals for the Federal Circuit affirmed, 708 F. 2d 680 (1983). It concluded that when an obligor notifies the Government that the court issuing the garnishment order does not have personal jurisdiction over him, the order does not constitute “legal process regular on its face” within the meaning of the statute. Judge Nies dissented, reasoning that the statute required only that the state court have subject-matter jurisdiction to enter the writ of garnishment, and that the notice respondent had provided the disbursing officer did not affect the question whether the Alabama court was a “court of competent jurisdiction.”
Because the holding of the Federal Circuit creates a substantial risk of imposing significant liabilities upon the United States as a result of garnishment proceedings, and because the decision below created a conflict in the Circuits, we granted the Government’s petition for certiorari, 465 U. S. 1004 (1984).
b-i
Ten years ago Congress decided that compensation payable to federal employees, including members of the Armed Services, should be subject to legal process to enforce employees’ obligations to provide child support or make alimony payments. Section 459(a) of the Social Services Amendments of 1974, 88 Stat. 2357-2358, was enacted as a result. As amended, it currently provides:
“Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.” 42 U. S. C. § 659(a).
In 1977 Congress amended the statute by specifying a procedure for giving notice to affected employees, directing that the normal federal pay and disbursement cycle should not be modified to comply with garnishment writs, authorizing promulgation of appropriate implementing regulations, and defining terms such as “alimony,” “child support,” and “legal process.” It also added subparagraph (f), the provision at issue in this case. See 91 Stat. 157-162.
I — I h — i
We assume, as does the Government, that the Alabama court lacked jurisdiction over respondent when it issued its writs of garnishment. Based on that assumption, respondent defends the judgment below by arguing that the Alabama court was not a “court of competent jurisdiction,” and hence its orders could not satisfy the statutory definition of “legal process.”
If we were to look at the words “competent jurisdiction” in isolation, we would concede that the statute is ambiguous. The concept of a court of “competent jurisdiction,” though usually used to refer to subject-matter jurisdiction, has also been used on occasion to refer to a court’s jurisdiction over the defendant’s person. We do not, however, construe statutory phrases in isolation; we read statutes as a whole. Thus, the words “legal process” must be read in light of the immediately following phrase — “regular on its face.” That phrase makes it clear that the term “legal process” does not require the issuing court to have personal jurisdiction.
Subject-matter jurisdiction defines the court’s authority to hear a given type of case, whereas personal jurisdiction protects the individual interest that is implicated when a nonresident defendant is haled into a distant and possibly inconvenient forum. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 701-703, and n. 10 (1982). The strength of this interest in a particular case cannot be ascertained from the “face” of the process; it can be
determined only by evaluating a specific aggregation of facts, as well as the possible vagaries of the law of the forum, and then determining if the relationship between the defendant— in this case the obligor — and the forum, or possibly the particular controversy, makes it reasonable to expect the defendant to defend the action that has been filed in the forum State. The statutory requirement that the garnishee refer only to the “face” of the process is patently inconsistent with the kind of inquiry that may be required to ascertain whether the issuing court has jurisdiction over the obligor’s person.
Nor can the plain language of § 659(f) be escaped simply because the obligor may have provided some information that raises a doubt concerning the issuing court’s jurisdiction over him, as he must do under the Court of Appeals’ holding. In such a case the determination would be based on the information provided by the obligor, rather than, as is required by the statute, “on the face” of the writ of garnishment. The writ is simply a direction to the garnishee; it contains no information shedding light upon the issuing court’s jurisdiction over the obligor. Inquiry into the issuing court’s jurisdiction over the debtor cannot be squared with the plain language of the statute, which requires the recipient of the writ to act on the basis of the “face” of the process.
I — I HH HH
The legislative history does not contain any specific discussion of the precise question presented by this case. It does, however, show that Congress did not contemplate the kind of inquiry into personal jurisdiction that the Court of Appeals’ holding would require, and it plainly identifies legislative objectives that would be compromised by requiring such an inquiry.
In colloquy on the floor of the House during the consideration of the 1974 legislation, two of its principal sponsors made it clear that no more than the face of the writ of garnishment was to be the basis for the garnishment of a federal employee’s salary:
“Mr. ST GERMAIN. Essentially, the mother or the wife goes into the State court and gets a judgment, and then proceeds on the judgment, on the execution of same, and proceeds with the garnishment; is that not correct?
“Mr. ULLMAN. The gentleman is correct.
“Mr. ST GERMAIN. And there are no other conditions precedent?
“Mr. ULLMAN. The garnishment is on the basis of the court order or decision. It is on the basis of the court order or by trial by the court in the case of a father or mother failing to live up to his or her obligations.
“Mr. ST GERMAIN. That is correct. Or with alimony?
“Mr. ULLMAN. That is right, with alimony.” 120 Cong. Rec. 41810 (1974).
Of course, it would be impossible to inquire into personal jurisdiction based on nothing more than the court order. No such inquiry could have been intended.
The liability of private employers under similar circumstances is also illuminating. The legislative history, as well as the plain language of § 659(a), indicates that Congress intended the Government to receive the same treatment as a private employer with respect to garnishment orders. A construction of the statute that would impose liability on the Government for honoring a writ issued by a court with subject-matter jurisdiction would be inconsistent with the law applicable to private garnishees. It has long been the rule that at least when the obligor receives notice of the garnishment, the garnishee cannot be liable for honoring a writ of garnishment. See Harris v. Balk, 198 U. S. 215, 226-227 (1905). For example, after imposing on all employers a duty to honor writs of garnishment, the District of Columbia Code, which Congress itself enacted, see 77 Stat. 555, provides:
“Any payments made by an employer-garnishee in conformity with this section shall be a discharge of the liability of the employer to the judgment debtor to the extent of the payment.” D. C. Code § 16-573(c) (1981).
The law in Alaska and Alabama is to similar effect, as it is in the great majority of jurisdictions. Thus, to hold the Government liable in this case would be to conclude that Congress intended to adopt a different standard for liability than would be applicable to a private employer. Such a conclusion is foreclosed by the statute and its legislative history.
Finally, the underlying purpose of §659 is significant. The statute was enacted to remedy the plight of persons left destitute because they had no speedy and efficacious means of ensuring that their child support and alimony would be paid. Burdening the garnishment process with inquiry into the state court’s jurisdiction over the obligor can only frustrate this fundamental purpose as a consequence of the resulting delay in the process of collection. And “[bjecause delay so often results in loss of substantial rights, the effect frequently will be also to make impossible the ultimate as well as the immediate collection of what is due; and to substitute a right of lifelong litigation for one of certain means of subsistence.” Griffin v. Griffin, 327 U. S. 220, 239, n. 4 (1946) (Rutledge, J., dissenting in part). Such a result could not be more at odds with congressional intent.
IV
As part of the 1977 amendment, Congress authorized the promulgation of “regulations for the implementation of the provisions of section 659,” 42 U. S. C. § 661(a). In the last sentence of § 659(f), Congress indicated that the United States could not be held liable for honoring a wait of garnishment so long as payment is made in accordance with these regulations. Because Congress explicitly delegated authority to construe the statute by regulation, in this case we must give the regulations legislative and hence controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute. Moreover, implementing regulations which simplify a disbursing officer’s task in deciding whether to honor a writ of garnishment are entitled to special deference, since that was the precise objective of Congress when it delegated authority to issue regulations.
The relevant regulations squarely address the question presented by this case. The regulations require that within 15 days of the service of process, the garnishee must give notice of service and a copy of the process to the employee. 5 CFR § 581.302(a) (1984). The regulations further provide that the garnishee entity must honor the process except in specified situations, none of which involves the issuing court’s lack of jurisdiction over the employee. They then state:
“If a governmental entity receives legal process which, on its face, appears to conform to the laws of the jurisdiction from which it was issued, the entity shall not be required to ascertain whether the authority which issued the legal process had obtained personal jurisdiction over the obligor.” § 581.305(f).
Thus, the regulations definitively resolve the question before us. They cannot possibly be considered “clearly inconsistent” with the statute or “arbitrary,” since the terms “legal process” and “court of competent jurisdiction” are at least ambiguous, and they further congressional intent to facilitate speedy enforcement of garnishment orders and to minimize the burden on the Government.
V
The plain language of the statute, its legislative history and underlying purposes, as well as the explicit regulations authorized by the statute itself, all indicate that the Government cannot be held liable for honoring a writ of garnishment which is “regular on its face” and has been issued by a court with subject-matter jurisdiction to issue such orders. Accordingly, the judgment of the Court of Appeals is reversed.
It is so ordered.
The trial court found that after respondent was first notified of the service of the writ, the Air Force attorney he consulted assured him that he could ignore the writ because he was not within the jurisdiction of the state court. Apparently the only remedy respondent has ever sought with respect to the garnishment of his salary is the instant action.
The statute provides:
“The term ‘legal process’ means any writ, order, summons, or other similar process in the nature of garnishment, which—
“(1) is issued by (A) a court of competent jurisdiction within any State, territory, or possession of the United States . . . and
“(2) is directed to, and the purpose of which is to compel, a governmental entity, which holds moneys which are otherwise payable to an individual, to make a payment from such moneys to another party in order to satisfy a legal obligation of such individual to provide child support or make alimony payments.” 42 U. S. C. § 662(e).
See Calhoun v. United States, 557 F. 2d 401 (CA4), cert. denied, 434 U. S. 966 (1977).
Although at least the initial garnishment in this ease occurred prior to the passage of the 1977 amendment, the parties agree that the statute as amended in 1977 applies to this case.
This is, however, the only ground on which respondent attacks the enforcement of the writs of garnishment. Thus, no question is raised concerning the sufficiency of the notice and opportunity to contest the garnishment that respondent received prior to the execution of the writs, see generally Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); Fuentes v. Shevin, 407 U. S. 67 (1972); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); and in particular no question is raised as to whether respondent was afforded an adequate opportunity to contest the jurisdiction of the court issuing the writ in the jurisdiction where the writ was enforced, see generally Vanderbilt v. Vanderbilt, 354 U. S. 416 (1957); May v. Anderson, 345 U. S. 528 (1953); Estin v. Estin, 334 U. S. 541, 548-549 (1948); Griffin v. Griffin, 327 U. S. 220 (1946).
As far back as Pennoyer v. Neff, 95 U. S. 714 (1878), we drew a clear distinction between a court’s “competence” and its jurisdiction over the parties:
“To give such proceedings any validity, there must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.” Id., at 733.
See Restatement (Second) of Judgments § 11, Comment a (1982).
See, e. g., Stafford v. Briggs, 444 U. S. 527, 535 (1980); Philbrook v. Glodgett, 421 U. S. 707, 713 (1975); Chemehuevi Tribe of Indians v. FPC, 420 U. S. 395, 403 (1975); Chemical Workers v. Pittsburgh Plate Glass Co., 404 U. S. 157, 185 (1971).
See, e. g., Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 775-776 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 292 (1980); Shaffer v. Heitner, 433 U. S. 186, 203-204 (1977).
The Comptroller General wrote in a similar ease:
“The inquiry into whether an order is valid on its face is an examination of the procedural aspects of the legal process involved, not the substantive issues. Whether a process conforms or is regular ‘on its face’ means just that. Facial validity of a writ need not be determined ‘upon the basis of scrutiny by a trained legal mind,’ nor is facial validity to be judged in light of facts outside the writ’s provisions which the person executing the writ may know.” In re Mathews, 61 Comp. Gen. 229, 230-231 (1982).
Moreover, the floor debates also indicate that Congress envisioned garnishments based on foreign judgments against nonresident debtors under the statute:
“[Mr. WHITE.] As I read the conference report, a paternity suit could be brought in another State, a judgment rendered in that State, and then the judgment brought back into Texas where there is no paternity suit action line and brought into a U. S. Federal court and file a garnishment against social security and veterans’ benefits, is this true?
“Mr. PETTIS. I understand that is correct.” 120 Cong. Rec. 41813 (1974).
The 1977 amendment of the statute, adding § 659(f), did not alter this state of affairs, since it specifies only those circumstances in which the Government is not liable. In fact, the legislative history of the amendment indicates that it was intended only to clarify the law. See H. R. Conf. Rep. No. 95-263, p. 35 (1977); 123 Cong. Ree. 12909 (1977) (remarks of Sens. Curtis and Nunn). Inquiry into personal jurisdiction would actually be inconsistent with the intent of the 1977 amendment of the statute. In a memorandum explaining the amendment, its sponsors indicated that they intended federal agencies to respond to garnishment orders promptly: “The amendment provides specific conditions and procedures to be followed under section 459. It specifies that service of legal process brought for the enforcement of an individual’s obligation to provide child support or alimony is to be accomplished by certified or registered mail, or by personal service, upon the person designated to accept the service for a government entity. The process must be accomplished by sufficient data to permit prompt identification of the individual and the moneys which are involved. These provisions will permit inexpensive and expedited service and will enable the agency to respond in an efficient way.” Id., at 12912. This explanatory material was taken from the Report on a virtually identical bill which had been reported by the Senate Finance Committee during the preceding session of Congress. See S. Rep. No. 94-1350, p. 4 (1976). The 1977 amendment’s language and intent was substantially the same as this earlier version, 123 Cong. Rec. 12909 (1977) (remarks of Sens. Curtis and Nunn). This twice-stated congressional goal of speed and efficiency would be seriously undermined if the Government could not rely on the face of the garnishment order and instead had to inquire into the circumstances relating to the issuing court’s jurisdiction over the obligor.
For example, the explanatory material accompanying the 1977 amendment stated:
“It should be emphasized that the fact that section [6]59 is applicable to particular moneys does not necessarily mean that those moneys will be subjeet to legal process; it merely means that the question of whether such moneys will be subject to legal process will be determined in accordance with State law in like manner as if the United States were a private person.” Id., at 12914.
See also S. Rep. No. 94-1350, p. 9 (1976); S. Rep. No. 93-1356, pp. 53-54 (1974); 120 Cong. Rec. 40338-40339 (1974) (remarks of Sen. Montoya); id., at 41810 (remarks of Reps. Ullman and Waggonner).
See Ala. Code §§6-6-453(a), 6-6-461 (1975); Alaska Stat. Ann. § 09.40.040 (1983).
See, e. g., Ariz. Rev. Stat. Ann. §12-1592 (1982); Ark. Stat. Ann. §31-146 (1962); Cal. Civ. Proc. Code Ann. §706.154(b) (West Supp. 1984); Idaho Code §8-510 (1979); Ill. Rev. Stat., ch. 110, §12-812 (1983); Ind. Code § 34-1-11-29 (1982); Iowa Code § 642.18 (1983); Md. Cts. & Jud. Proc. Code Ann. § ll-601(a) (1984); Mass. Gen. Laws Ann., ch. 246, §43 (West 1959); Mich. Comp. Laws §600.4061(3) (1968); Minn. Stat. §571.54 (1982); Miss. Code Ann. § 11-35-37 (1972); Mo. Rev. Stat. § 525.070 (1978); N. H. Rev. Stat. Ann. §512:38 (1983-1984); N. J. Stat. Ann. §2A:17-53 (West Supp. 1984); N. Y. Civ. Prac. Law § 5209 (McKinney 1978); N. D. Cent. Code §32-09.1-15 (Supp. 1983); Ohio Rev. Code Ann. § 2716.21(D) (Supp. 1983); Okla. Stat., Tit. 12, §1233 (1961); Ore. Rev. Stat. §29.195 (1983); S. D. Codified Laws § 21-18-32 (1979); Tenn. Code Ann. § 29-7-117 (1980); Vt. Stat. Ann., Tit. 12, §3081 (1973); Wash. Rev. Code §7.33.200 (1983); W.Va. Code §38-7-25 (1966); Wis. Stat. §812.16(2) (1981-1982); Wyo. Stat. § 1-15-302 (1977).
Senator Montoya said:
“The modification proposed by the committee provides that money due from the United States to any individual citizen, including service men and women, may be garnished as a result of legal process for payment of alimony and child support.
“What this really means is that civil servants and military personnel can be forced to accept full responsibility for care of families — especially dependent children — in the same way that other Americans can.
“It is tragic that there are any men or women in the United States who would willingly desert their children, leaving wives and families to struggle alone or to go on our already overburdened welfare rolls.
“However, as any member of the judiciary or legal profession can tell you, the truth is that there are always some who try to avoid responsibility and who must be forced to pay debts.
“Mr. President, the child support proposal contained in the committee substitute will give us an opportunity to prove to these women and children that justice exists for them, too, in the United States. The proposal is not new. I believe it is time for us to make sure that this small change is made in our law in order to correct what is patently a disgraceful situation. We must give the wives and children of Federal employees and retirees the same legal protections which we have provided for all other American women and children.” 120 Cong. Rec. 40338-40339 (1974).
To similar effect, see S. Rep. No. 93-1356, pp. 43-44 (1974); 120 Cong. Rec. 40323 (1974) (remarks of Sen. Long); id., at 41809 (remarks of Rep. Ullman). See also H. R. Rep. No. 92-481, pp. 17-18 (1971).
See Sckweiker v. Gray Panthers, 453 U. S. 34, 44 (1981); Batterton v. Francis, 432 U. S. 416, 425-426 (1977).
See 123 Cong. Rec. 12912-12913 (1977); S. Rep. No. 94-1350, p. 6 (1976).
The regulations provide:
“The governmental entity shall comply with legal process, except where the process cannot be complied with because:
“(1) It does not, on its face, conform to the laws of the jurisdiction from which it was issued;
“(2) The legal process would require the withholding of funds not deemed moneys due from, or payable by, the United States as remuneration for employment;
“(3) The legal process is not brought to enforce legal obligation(s) for alimony and/or child support;
“(4) It does not comply with the mandatory provisions of this part;
“(5) An order of a court of competent jurisdiction enjoining or suspending the operation of the legal process has been served on the governmental entity; or
“(6) Where notice is received that the obligor has appealed either the legal process or the underlying alimony and/or child support order, payment of moneys subject to the legal process shall be suspended until the governmental entity is ordered by the court, or other authority, to resume payments. However, no suspension action shall be taken where the applicable law of the jurisdiction wherein the appeal is filed requires compliance with the legal process while an appeal is pending. Where the legal process has been issued by a court in the District of Columbia, a motion to quash shall be deemed equivalent to an appeal.” 5 CFR § 581.305(a) (1984).
See also 48 Fed. Reg. 811, 26279 (1983).
Respondent argues that § 581.305(f) is not entitled to deference because it was not promulgated by the Office of Personnel Management until after this suit was brought. But that fact is of no consequence. Congress authorized the issuance of regulations so that problems arising in the administration of the statute could be addressed. Litigation often brings to light latent ambiguities or unanswered questions that might not otherwise be apparent. Thus, assuming the promulgation of § 581.305(f) was a response to this suit, that demonstrates only that the suit brought to light an additional administrative problem of the type that Congress thought should be addressed by regulation. When OPM responded to this problem by issuing regulations it was doing no more than the task which Congress had assigned it. See generally Anderson, Clayton & Co. v. United States, 562 F. 2d 972, 979-985 (CA5 1977), cert. denied, 436 U. S. 944 (1978).
See supra, at 828.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer: |
songer_weightev | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Eunice ANDREWS, Patricia Chilton, Barbara Tommie, et al., Plaintiffs-Appellants, v. Verne ORR, Secretary of the Air Force, Defendant-Appellee.
No. 87-3397.
United States Court of Appeals, Sixth Circuit.
Argued April 26, 1988.
Decided June 30, 1988.
Joseph F. Henderson, Mt. Rainier, Md., for plaintiffs-appellants.
Paul Blankenstein, Judith F. Ledbetter, Anthony W. Norwood, Elizabeth A. Pugh, Dept, of Justice, Civil Div., Washington, D.C., Robert S. Greenspan, Michael E. Robinson (argued), Dale Ann Goldberg, Asst. U.S. Atty., Dayton, Ohio, for defendant-ap-pellee.
Before LIVELY, KRUPANSKY and BOGGS, Circuit Judges.
LIVELY, Circuit Judge.
This is an employment discrimination case filed as an individual and class action by federal employees under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982). The appeal concerns the application of requirements that administrative remedies be sought in a timely manner prior to the commencement of court proceedings. With regard to individual claims, the regulation involved is 29 C.F.R. § 1613.214(a)(l)(i), which provides:
§ 1613.214 Filing and presentation of complaint.
(a) Time limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accordance with this subpart only if:
(i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date;
Different regulations cover claims for classwide relief. See 29 C.F.R. § 1613.601 et seq. These regulations contain a ninety day time limit. 29 C.F.R. § 1613.602(a). The regulations are part of a comprehensive administrative scheme, culminating in consideration of claims of employment discrimination by the Equal Employment Opportunity Commission (EEOC) as the final stage before litigation.
I.
Since the sequence and dates of various steps are critical to the decision of the appeal, we set forth the district court’s succinct statement of the case:
The plaintiffs are black, civilian employees of the Air Force Logistics Command (“AFLC”) stationed at Wright-Patterson Air Force Base (“WPAFB”). The Plaintiffs allege that they were discriminated against on the basis of their race by the denial of promotions. Plaintiffs base this allegation on the use of the Professional and Administrative Career Examination (“PACE”) by the AFLC to select employees for promotion. Plaintiffs contend that PACE had a disparate impact upon blacks.
This is the third class action, of which this Court is aware, challenging the disparate impact of PACE. The first of these was Luevano v. Campbell, 93 F.R. D. 68 (D.D.C.1981). Subsequently, a class action was commenced in this Court on behalf of all black AFLC employees who sought promotion to professional, administrative or technical jobs prior to January 19, 1982, for which the PACE exam was administered, and who were denied promotional opportunities as a result of Defendant’s use of PACE. Brown v. Orr, 99 F.R.D. 524 (S.D. Ohio 1983). On March 15, 1983, this Court issued its Decision denying class certification in Brown. The Plaintiffs herein took no action at that time. On April 18, 1983, the plaintiff in Brown filed a second motion to certify a class therein. Before this Court ruled on the then pending, second motion to certify, the Plaintiff in Brown settled her individual claim on July 12, 1983, and the cause was dismissed with prejudice. Once again, the Plaintiffs herein took no action with regard to the Brown case. Rather, between July 26 and July 28, 1983, the Plaintiffs herein initiated the administrative process by contacting their EEO counselor.
Andrews v. Orr, 614 F.Supp. 689, 690-91 (S.D. Ohio 1985).
The defendant moved to dismiss the individual claims for lack of jurisdiction because the plaintiffs had failed to file complaints with their EEO counselor within thirty days after the district court’s denial of the first motion for class certification in the Brown case. The defendant conceded, at least implicitly, that time limits for filing individual administrative complaints were tolled during the pendency of the class action but contended that tolling ended with the district court’s March 15, 1983, order. The defendant also moved to dismiss the class claim, contending that the tolling rule does not apply to such claims.
The district court concluded that the pendency of the Luevano and Brown class actions tolled the period for filing individual claims, but that it did not toll the limitations period for any new claims seeking classwide relief. 614 F.Supp. at 692. The district court then determined that the thirty day limitations period applicable to the plaintiffs’ individual claims began to run with the March 15 denial of class certification in Brown. Since the plaintiffs filed their complaints with their EEO counselor in July, they were out of time. The court also held, however, that the thirty day requirement is not jurisdictional and is subject to equitable tolling. Id. at 693-94. In a later unreported decision filed on February 27, 1987, the district court held that the plaintiffs had not established facts to support a finding that equitable tolling should be applied to extend the time in which they could have filed their individual administrative complaints. The district court then dismissed the action with prejudice, and this appeal followed.
II.
A.
The district court was clearly correct in holding that pendency of the Luevano and Brown class actions tolled the limitations periods for the plaintiffs’ individual claims. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court stated the rule that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554, 94 S.Ct. at 766 (footnote omitted). Later the Court applied this rule in a Title VII case and clarified the duration and effect of the tolling. Crown, Cork & Seal Co. v. Parker, 462 U.S. 346, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983). There the Court stated that “[o]nce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354, 103 S.Ct. at 2397-98 (emphasis added).
B.
We also agree with the district court’s conclusions concerning the plaintiffs’ attempt to gain classwide relief. The courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class. See Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987) (“The Supreme Court ... certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints.”); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1245, 89 L.Ed.2d 353 (1986) (“Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely....”); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987) (adopting reasoning of Korwek). These decisions reflect the concern expressed by Justice Powell, concurring separately in Crown, Cork & Seal: “The tolling rule of American Pipe [& Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed. 2d 713 (1974)] is a generous one, inviting abuse.” 462 U.S. at 354, 103 S.Ct. at 2398.
The plaintiffs make one contention that is not mentioned in any of the cited cases. Relying on United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), they argue that the time for filing their class claims was tolled until all appeal and intervention rights expired in Brown. They misconstrue the holding of McDonald. In that case the plaintiff was permitted to intervene in an earlier class action of which she was a putative class member solely for the purpose of appealing the court’s denial of class certification. McDonald dealt only with the right to intervene for the purpose of seeking reversal of a denial of class certification; nothing in the opinion supports the view that the American Pipe tolling rule applies to class members who do not intervene to appeal, but seek to initiate a new class action.
C.
Thus we agree with the district court that the thirty day limitations period for filing individual administrative complaints was tolled during the pendency of the earlier class actions, but that there was no tolling for future class actions by putative class members. We turn next to the question of when tolling ended and the thirty day period began to run for the plaintiffs’ .individual claims.
III.
As stated earlier, the district court denied class certification in Brown on March 15, 1983. At a pretrial conference on March 23, 1983, the plaintiff in Brown indicated that she intended to file a second motion to certify a class limited to employees at WPAFB. On March 25 the court issued a pretrial order directing Brown to file such a motion within thirty days. Complying with this order, Brown filed her second motion for class certification on April 18. This motion was still pending when the Brown case was settled and dismissed in July. The district court held that since there was no motion to certify a class in Brown pending between March 15 and April 18, the plaintiffs’ time to file individual EEO complaints began to run on March 15 and expired on April 15. The court stated that tolling was not triggered by the Brown plaintiff’s notification of her intention to file a second motion for class certification, or by the district court order granting thirty days for filing the motion. The district court emphasized that tolling occurs under the American Pipe-Crown, Cork & Seal rule only during the pendency of a class action, and Brown ceased to be a class action on March 15, 1983. 614 F.Supp. at 692-93.
The plaintiffs argue on appeal that the thirty day filing period was continuously tolled from the commencement of the Lue-vano class action until the Brown class action was finally settled on July 12, 1983, with the second motion for certification still pending. In the alternative, they contend that the March 23, 1983, notice of intent to file a second motion to certify in Brown revived tolling. Thus, they contend their individual claims, filed between July 26 and 28, 1983, were timely. The defendant responds that tolling ended on March 15 and the plaintiffs’ time ran out on April 15 because no class action or motion to certify a class was pending on that date.
We agree with the district court and defendant. The thirty day filing requirement triggers the entire administrative mechanism for handling claims of discrimination, and is normally measured from the occurrence of the “matter” causing an employee to believe she has suffered discrimination. It is intended to bring complaints to the attention of the employer expeditiously. So long as a class action is pending the employer-agency is on notice of the claims of all putative class members. Once the class action ends, however, the employee is required to bring her individual claim to the attention of the employer by filing an administrative complaint with her EEO counselor. Absent a showing of grounds for equitable tolling, which we discuss later, there is no basis in the regulations or the case law for relieving an employee of the obligation to take this step within thirty days as required by 29 C.F.R. § 1613.214(a)(l)(i). Even if the Brown plaintiffs second motion for class certification somehow revived or reactivated tolling, it came too late. More than thirty days had gone by in which neither a class action nor a motion for class certification was pending.
We find nothing in American Pipe or Crown, Cork & Seal to indicate that mere notice by the Brown plaintiff of her intent to file a second motion for class certification began a new tolling period. It is the filing of a class action and the pendency of a motion to certify that suspend the running of a limitations period for putative class members, and the period for filing begins to run anew when class certification is denied. Nothing less will suffice to maintain the period of suspension.
IV.
A.
The plaintiffs’ final argument is that the thirty day filing period was subject to equitable tolling until the Brown case was finally dismissed. The district court correctly held that the filing requirements of 29 C.F.R. § 1613.214(a) are not jurisdictional and are subject to equitable tolling. Boddy v. Dean, 821 F.2d 346 (6th Cir.1987). The district court found, however, that the plaintiffs’ affidavits provided no basis for invoking the equitable tolling doctrine. The court stated that equitable tolling may be premised either upon misleading conduct by the employer or ineffective but diligent conduct by the employee that causes her to miss a filing deadline. The court found that neither condition existed in this case.
The plaintiffs maintain that they reasonably believed that the pendency of the Brown case protected their interests until that case was finally settled on July 12, 1983. They note that although the first motion for class certification was denied on March 15, that ruling could not have been appealed until a final judgment was entered, Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), and they did not know until Brown was settled that there would be no appeal of the class denial. Since the Brown plaintiff’s second motion for certification was still pending at the time of settlement and dismissal, the plaintiffs contend that they reasonably believed there had been no final resolution of the class action issue upon which their rights depended. Further, they acted promptly — filing their administrative claims within sixteen days after settlement of Brown — and thus did not sleep on their rights.
B.
This court has addressed the application of equitable tolling in many employment discrimination cases involving both public and private employers. E.g., Boddy v. Dean, supra; Wright v. State of Tennessee, 628 F.2d 949 (6th Cir.1980); Brown v. Mead Corp., 646 F.2d 1163 (6th Cir.1981); Geromette v. General Motors Corp., 609 F.2d 1200 (6th Cir.1979), cert. denied, 446 U.S. 985, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980). One theme that runs throughout these cases is that equitable tolling is to be carefully applied. See Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir. 1987) (application “is usually very much restricted”); Brown v. Mead Corp., 646 F.2d at 1165 (appropriate “in limited circumstances”). On the other hand, in considering whether to apply equitable tolling in a given case, the court must be sensitive to the broad remedial purposes of Title VII.
The most common situation calling for equitable tolling involves some affirmative representation or action by the employer that causes an employee to miss a filing deadline. See Leake v. University of Cincinnati, 605 F.2d 255, 259 (6th Cir.1979) (express statements by the employer, and the employee’s reliance thereon, could reasonably have led to delay in filing claim). Although the regulations create a difficult maze which must be traversed by federal employees with discrimination claims, this is not a case where an affirmative act or representation by the employer caused the plaintiffs to miss the thirty day filing deadline. However, this court stated in Fox v. Eaton Corp., 615 F.2d 716, 718 (6th Cir. 1980), cert. denied, 450 U.S. 935, 101 S.Ct. 1401, 67 L.Ed.2d 371 (1981), that “courts have not hesitated to at least consider and in some circumstances to apply equitable tolling principles in contexts in which the employer’s conduct has not caused the employee to delay in pursuing his claim.”
In Wright v. State of Tennessee, 628 F.2d at 953, we identified by reference to another opinion some factors we felt pertinent to a decision whether to apply equitable tolling in a given case. The factors are: (1) lack of actual notice of filing requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff’s reasonableness in remaining ignorant of the notice requirement. The Supreme Court stated in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984), that “[a]lthough absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify tolling is identified, it is not an independent basis for invoking the doctrine....” Thus, we look beyond the absence of prejudice to the defendant, a factor upon which the plaintiffs have laid great stress.
C.
Since the plaintiffs do not claim lack of knowledge or notice of the filing requirement, our inquiry is limited to examining their diligence in pursuing their rights and the reasonableness of their ignorance of the effect of the district court’s March 15 denial of the first motion for class certification in Brown. The circumstances surrounding the court’s treatment of the Brown plaintiff’s second motion for class certification provide the strongest support for the plaintiffs’ arguments. The district court granted Brown thirty days from March 25, 1983, to file the second motion, and Brown filed it on April 18, 1983. That motion sought certification of a class that clearly included the plaintiffs in the instant action.
Although the second motion was filed more than thirty days after the first one was denied, it seems reasonable for the plaintiffs here to assume that the court’s March 25 order had the effect of keeping open the class action question so long as Brown formally raised it again within thirty days. While we agree with the district court that technically there was no class action or class certification motion pending between March 15 and April 18, the circumstances appear to justify the plaintiffs’ belief that the question of whether Brown could proceed as a class action was not finally determined until that case was settled and dismissed in July. The plaintiffs’ affidavits all state that they did not become aware that the motion to certify Brown as a class action had been “overruled” (actually extinguished by settlement and dismissal) “until after July 19, 1983.” That was the date on which a notice was sent to all affected class members in PACE litigation by the American Federation of Government Employees. The plaintiffs acted promptly after becoming aware of the true state of affairs.
Having identified the circumstances upon which the plaintiffs could have reasonably relied in delaying, and having determined that they acted with diligence upon being informed of their need to do so, we also consider the lack of prejudice to the defendant, Baldwin, 466 U.S. at 152, 104 S.Ct. at 1726, and conclude that the plaintiffs have presented a case for application of equitable tolling. The district court recognized the difficult procedural requirements imposed by the regulations. In its unpublished opinion, the court stated that “[b]y setting short time limitation periods and establishing a maze of regulatory appeals, the government virtually assures that any but the most astute worker will find his or her claim barred by some procedural technicality once he or she gets to the United States District Court.” We agree and believe these plaintiffs should be able to pursue their individual claims.
The judgment of the district court is vacated, and the case is remanded for further proceedings, including reconsideration of the plaintiffs’ motion for leave to amend their complaint. No costs are taxed on appeal.
This second motion to certify in Brown limited the class to employees at WPAFB, precisely the same class as the Plaintiffs seek to represent herein.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genapel1 | H | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
CAVANA v. ADDISON MILLER, Inc.
(Circuit Court of Appeals, Ninth Circuit.
March 28, 1927.)
No. 4990.
Exceptions, bill of <9=38 — Bill of exceptions must be certified during term or extension thereof.
Bill of exceptions must be certified during the term at which judgment was entered or extension granted during that term.
In Error to the the District Court of the United States for the Northern Division of the Eastern District of Washington; J. Stanley Webster, Judge.
Action at law by Jack Cavana against Addison Miller, Inc. Judgment for defend-' ant, and plaintiff brings error.
Affirmed,
E. B. Sharpstein and Everett J. Smith, both of Walla Walla, Wash., for plaintiff in error.
E. Eugene Davis, of Spokane, Wash., and M. L. Driscoll, of Pasco, Wash., for defendant in error.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Rehearing denied May 2, 1927.
RUDKIN, Circuit Judge.
A motion has been interposed by the defendant in error to strike the bill of exceptions from the record and files, on the ground that it was not settled or certified within the term, or within the time allowed by law. Inasmuch as the assignments of error are all predicated upon the ruling of the court granting an involuntary nonsuit, if this motion is granted, there is no question before us for review.
The facts in relation to the settlement and certification of the bill of exceptions are as follows: The case was tried .during the April term, 1926, of the court below, which expired on the first Monday of the ensuing September. The final judgment was entered May 17; the motion for a new trial was denied August 23; the proposed bill of exceptions was served on opposing counsel and lodged with the clerk of the court on August 30, but was not presented for allowance by the court, and no notice of such presentation was given until after the expiration of the term, when on October 1, 1926, the bill was settled and certified by the court, over the objection and protest of the defendant in error.
The plaintiff in error has cited certain cases holding that the court may certify a bill of exceptions in disregard of its own rules, such as Southern Pac. Co. v. Johnson (C. C. A.) 69 F. 559; City of Seattle v. Board of Home Missions (C. C. A.) 138 F. 307; Russo-Chinese Bank v. National Bank of Commerce (C. C. A.) 187 F. 80. But, conceding this, the rule is well settled that it may not do so in the face of a statute or rule of law limiting its. authority in that regard. Thus in O’Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827, the Supreme Court held that the power of the trial court over' the cause expired with the expiration of the term, as extended by order of court, and that any proceedings concem- , ing the settlement of a bill of exceptions thereafter had were coram non judice and void. In the earlier case of Michigan Insurance Bank v. Eldred, 143 U. S. 293, 12 S. Ct. 450, 36 L. Ed. 162, the same court said:
“By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term.” '
The later decisions do not seem to recognizé even the limited exception there mentioned. Thus in Exporters v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663, the court said:
“We think the better rule and the one supported by former opinions of this court requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term or such time thereafter as may have been duly prescribed.”
But, whichever rule we adopt, the bill of exceptions in this case was not certified in time because the delay in obtaining the certification was not caused by very extraordinary circumstances. On the contrary, the circumstances were but usual and ordinary. The time for proposing a bill of exceptions commenced to run with the entry of final judgment on May 17, 3% months before the expiration of the term, without any extension thereof, and no excuse for the delay is offered or given. The ruling of the Supreme Court in such matters is, of course, controlling upon this court. Maryland Casualty Co. v. Citizens’ Nat. Bank (C. C. A.) 8 F.(2d) 216.
The court below was therefore without jurisdiction to certify the bill of exceptions after the expiration of the term, and for that reason the bill of exceptions must be disregarded and the judgment affirmed.
It is so ordered,
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_state | 08 | 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".
Edward BELADE, William Cochran, Monica Denman, Harriet Dokla, Charles Griebell, Joy Laiacone, Eleanor McGovern, Geraldine Privee, Frank Yates and David Zeller, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. ITT CORPORATION, Defendant-Appellee.
No. 704, Docket 89-7924.
United States Court of Appeals, Second Circuit.
Argued Jan. 17, 1990.
Decided July 25, 1990.
Joseph D. Garrison (Garrison, Kahn, Sil-bert & Arterton, New Haven, Conn., of counsel), for plaintiffs-appellants.
William L. Kandel (Russell G. Tisman, McDermott, Will & Emery, New York City, of counsel), for defendant-appellee.
Before FEINBERG, PRATT and MAHONEY, Circuit Judges.
PER CURIAM:
In 1986, defendant-appellant ITT Corporation (“ITT”) and Compagnie Generale d’Electricite (“CGE”) entered into negotiations for the purchase by CGE of ITT’s worldwide telecommunications businesses and related research facilities, including the Advanced Technology Center (“ATC”) in Shelton, Connecticut where Edward Be-lade and the other plaintiffs-appellants (the “Belade claimants”) then worked. These negotiations culminated in the sale by ITT to CGE of the stock of those telecommunications businesses and facilities. The businesses were transferred as going concerns, and over 90,000 employees, including the ATC employees, were transferred with the divested units. The terms of sale negotiated by ITT included continuing employment in the same positions for transferred ITT employees, with equivalent terms and conditions of employment, including normal retirement benefits. CGE then contributed these units, together with CGE’s worldwide telecommunications businesses, to Alcatel, N.V. (“Alcatel”), a newly formed corporation in which ITT has a substantial minority stock position. On or about February 20, 1987, Alcatel announced that the ATC would close by July 31, 1987. Termination of ATC employees commenced on March 2, 1987.
Largely because of the imminent divestiture pursuant to the CGE venture, ITT sought to restructure its corporate headquarters into a significantly smaller organization with correspondingly reduced staffing levels. Toward this end, ITT’s management designed an Enhanced Retirement Program (the “Program”) that offered retirement incentives, in the words of the directors’ resolution establishing the Program, to certain “currently active, full-time, Corporate employees, of designated departments and units of ITT World Headquarters located at 320 Park Avenue, New York, N.Y., and elsewhere.” Immediately following approval of the Program by ITT’s board of directors on October 7,1986, ITT management designated certain headquarters departments to be eligible for the Program, and then invited participation by qualified employees of those designated departments . via personalized letters dated October 8, 1986. Letters were sent, only to employees in management-designated departments. The pension administration committee that administers ITT’s retirement plan was not involved in the decision to offer the Program, its design, or the selection of employees to receive offers thereunder.
ATC was not designated for inclusion in the Program, since the Program was not made available to employees who, after the CGE sale, would be employed by Alcatel. Accordingly, none of the Belade claimants received offer letters.
In an action filed in the United States District Court for the District of Connecticut, the Belade claimants alleged, inter alia, that ITT violated its fiduciary duty under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 (1988), by denying ATC employees enhanced retirement benefits under the Program. Following motions for partial summary judgment by all parties, the district court granted partial summary judgment in favor of ITT, ruling that in designing the Program and designating employees eligible to participate in it, ITT was not bound by ERISA. Judgment was subsequently entered dismissing the action with prejudice, and a timely appeal and cross-appeal were taken from that judgment.
We write only to address the question whether an employer’s decision to exclude certain employees from the design of an early retirement program implicates fiduciary duties under ERISA. We answer this question in the negative, in accord with Trenton v. Scott Paper Co., 832 F.2d 806 (3rd Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988), because “[t]he design of the [Program] was purely a corporate management decision,” id. at 809, and ITT “had no fiduciary duty” under ERISA concerning its adoption, id.
“ERISA permits employers to wear ‘two hats,’ and ... they assume fiduciary status ‘only when and to the extent’ that they function in their capacity as plan administrators, not when they conduct business that is not regulated by ERISA.” Amato v. Western Union Int’l, 713 F.2d 1402, 1416-17 (2d Cir.1985) (quoting Amato v. Western Union Int’l, 596 F.Supp. 963, 968 (S.D.N.Y.1984)), cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986). Here, as the district court correctly concluded, “the defendant’s decision to design a plan for employees in select departments did not give rise to any fiduciary duty under ERISA because the company did not by virtue of the Program’s formation exercise authority or control over the ‘management’ or ‘administration’ of either the [ITT Salaried Retirement] Plan or the Program.”
Contrary to appellants’ contention, the Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), does not bring design decisions within ERISA. Firestone “is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on [ERISA-governed] plan interpretations,” id., 109 S.Ct. at 953, and does not purport to expand the scope of ERISA to include design decisions defining the parameters of a program. See Brown v. Ampco-Pittsburgh Corp., 876 F.2d 546, 551-52 (6th Cir.1989) (Nelson, J., concurring); see also Dzinglski v. Weirton Steel Corp., 875 F.2d 1075, 1078-79 (4th Cir.), cert. denied, — U.S.-, 110 S.Ct. 281, 107 L.Ed.2d 261 (1989); Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 285-86 (3d Cir.1988).
Although ITT cross-appealed from the judgment of the district court, and sought sanctions below, ITT has presented no argument for sanctions on appeal. In any event, none would be appropriate on this record.
The judgment of the district court is affirmed.
. The Belade claimants seek to bring this action on behalf of a class of salaried personnel, approximately forty in number, who were employed at ATC on October 8, 1986 and were denied the opportunity to participate in an Enhanced Retirement Program hereinafter described.
. For the reasons stated in the opinion of the district court granting partial summary judgment to ITT, we agree that ITT clearly did not include ATC as a designated unit under the Program.
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_casetyp1_6-3 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
NATIONAL LABOR RELATIONS BOARD v. LUXURAY, Inc.
No. 10.
Circuit Court of Appeals, Second Circuit
Nov. 3, 1941.
Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Bernard R. Bralove and Bertram Edises, all of Washington, D. C., for petitioner National Labor Relations Board.
Philip Jones, of New York City (John N. Platoff, of Union City, N. J., of counsel), for respondent Luxuray, Inc.
Before L. PIAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The respondent is a New York corporation engaged in the business of manufacturing wearing apparel. The National Labor Relations Board has filed a petition to’ enforce an order (1) requiring the corporation to desist from unfair labor practices, consisting of threats and anti-union statements calculated to persuade its employees not to join or assist International Ladies’ Garment Workers’ Union and to interfere with, restrain and coerce them in their right to self-organization and to bargain collectively through representatives of their own choosing; (2) requiring the corporation to offer Ethel Weller immediate reinstatement to her former position in the appliqué department or to a substantially equivalent position without prejudice to her seniority and to make her whole for any loss of pay since February 4, 1938, by reason of discrimination in regard to hire and tenure.
The Board found upon substantial evidence that in April 1937 the union began to organize the respondent’s employes. In a speech to them in December 1937 Rogosin, the president, gave reasons why it woftld not be to their advantage to join the union. In the course of his remarks he said about C. I. O. union leaders:
“ * * * They promised you increases in salaries, steady work, and vacations, and all they accomplished was that you have no work at all.
“ * * * I have been molested and annoyed by union conferences and adjustments, which have taken too much of my time, preventing me from planning to secure enough work to keep you employed as in the past. * * *
“It does not seem to me that Mr. Green, of the A. F. of L., or Mr. Lewis, of the C. I. O., are very seriously concerned over what they can do for you. It seems that their only interest is to obtain you as members and have the income of your dues for what it may do for themselves. You can readily see this, when they attack companies like ours, which have been paying better wages then the majority of competitive manufacturers, and you realize that we sell our goods in competition with manufacturers in New Jersey, Pennsylvania, North Carolina, South Carolina, and elsewhere. There were a number of manufacturers in our industry in Pennsylvania and in the South, paying considerably lower wages than we were, whom the union did not bother at all or attempt to bother, and they, in turn, having a lower cost of production and the mind of their management at ease, have gotten the business that rightfully should have been ours.
* ❖ * -\i * *
“My advice to you is that it is not to your interest to join the union and pay-dues. All you will accomplish will be that you will give to the union a portion of what we are able to give you. My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not. * * * ”
Shott, a Field Examiner of the National Labor Relations Board, gave testimony as to the attitude of Rogosin towards unions. He testified that when he took up with Rogosin the complaint of the Board about the discharge of Ethel Weller, Rogosin said: “She is working for the union, and I have no place in my organization for any one receiving wages as a union organizer * * * I want the Labor Board to understand that she is discharged * * * I am going to run my own business and I am not going to permit the Labor Board to run my business * *
It seems clear from the various utterances of Rogosin that there was proof that the respondent had a fixed hostility towards the activities of its employes in organizing a union in its plant and in selecting International Ladies’ Garment Workers’ Union as their representative. There plainly was substantial evidence of acts of interference, restraint and coercion on the part of the employer such as are proscribed by Section 8(1) of the Act, 29 U.S.C.A. § 158(1).
It is argued on behalf of the respondent that portions of Rogosin’s speech to the employes contained expressions sympathetic with labor unions. He did allude to the fact that Beaunit Mills, a corporation owning all the stock of respondent and of which he was president, had appointed T. W. O., a C. I. O. affiliate, bargaining agent for its employes at the Beaunit Mills Plant at Cohoes, New York, and had entered into a contract with T. W. O. regulating labor relations. But it is to be noticed that there is no proof that this contract had the sanction of the Cohoes employes or that they had selected it to represent them. It was open to the Board to regard the contract between Beaunit and T. W. O. as having no bearing on the situation here for at best it was an agreement covering workers who were not part of the group to which respondent’s employes belonged or with which the latter were appropriately combined as a bargaining unit. Rogosin’s speech as a whole and his subsequent talk with Shott amply supported the finding of the Board that the respondent had violated the rights guaranteed to its employes under Section 7 of the Act, 29 U.S.C.A. § 157, and had been guilty of acts of interference prohibited by Section 8(1).
It is further contended by the respondent that Rogosin acted lawfully in warning the employes against unions because of his right to freedom of speech guaranteed by the • Constitution. But freedom of speech does not extend to interested appeals by an employer to induce his men not to exercise the right of collective bargaining and not to become members of a labor union. National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U.S. 272, 274, 58 S.Ct. 577, 82 L.Ed. 838; National Labor Relations Board v. Federbush Co., 2 Cir., 121 F.2d 954, 957; National Labor Relations Board v. American Mfg. Co., 2 Cir., 106 F.2d 61, affirmed 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988. When Rogosin said to his employes: “My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not, * * * ” his action went beyond mere friendly advice. In view of his power to discharge the employes they might fairly suppose not only that it was not to their interest to become members of the union but that they might suffer from such an association. National Labor Relations Board v. A. S. Abell Co., 4 Cir., 97 F.2d 951, 956.
The mandatory provisions of the order directing the reinstatement of Ethel Weller with back pay are vigorously assailed by the respondent, but we feel no doubt that they find substantial justification in the record.
Mrs. Weller had acted as a fore-lady in a department of the Fort Plain Plant and was an employee of acknowledged competence. It is said that when the work of the company slowed down and many in her department were laid off she was excused for this reason. But she was never offered reinstatement, while other employes of inferior status were restored, and Rogosin told Shott, when the latter complained of this, that she was “discharged” and that he had no place in his “organization for anyone receiving wages as a union organizer.” She had been a member of the union for about nine months before she was laid off, had been conspicuously active in the union organization and had had weekly meetings held for that purpose at her house. The fact that other members of the union had been retained as employes, when Ethel Weller was laid off and that she had been kept in employment for many months after her membership in the union was known is said to show conclusively that there was no discrimination against her. But her leadership in union activities, the use of her house for the weeks immediately preceding her discharge for union activities, the persistence of the respondent in refusing reinstatement to her while juniors in service were being taken back justify the inference of discrimination drawn by the Board. Indeed such an inference is fully warranted by Rogosin’s statement to Shott which we have quoted, had there been little or nothing else on which to base the finding.
The belated contention that the Examiner showed bias and did not give a fair hearing is wholly unfounded. Iiis report contained some mistakes and his finding that an employee, Clara Gramps, was discharged because of union activities was reversed by the Board. Nevertheless, the fact that he acted with propriety and afforded the respondent a fair hearing is evident from the remarks of the latter’s counsel who said at the close of the hearing: “I thank the Examiner for your kindness and consideration and your efforts toward impartiality.”
For the foregoing reasons we hold that the petition of the Board for enforcement of its order should be granted with the conceded modification of Paragraph 2 (b) thereof, so far as it requires the payment over of moneys received for work performed on Federal, State, County, Municipal and other work relief projects. See Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.
Petition granted as modified.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
SMITH v. UNITED STATES (two cases).
Nos. 6329, 6330.
Circuit Court of Appeals, Fifth Circuit.
May 17, 1932.
See, also, 43 F.(2d) 173.
Henry E. Kahn, of Houston, Tex., for appellant.
H. M. Holden, U. S. Atty., of Houston, Tex.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
Rehearing denied June 29, 1932.
BRYAN, Circuit Judge.
This is an appeal from convictions on two indictments charging violations of the National Prohibition Act (27 USCA). The only error assigned is that the trial court erred in sustaining a demurrer to appellant’s plea of immunity from prosecution. The facts as alleged in that plea as a bar to both indictments are these: A prohibition agent named Cheatham was indicted in a state court of Texas for transporting intoxicating liquor in violation of a statute of that state (Pen. Code 1925, art. 666). Upon Cheatham’s application, the ease against him was removed to the federal District Court, where it was prosecuted by the state attorney, and defended by the United States attorney, pursuant to 28 USCA § 76. Appellant appeared as a witness at that trial and testified for the prosecution, in obedience to a subpoena. On his direct examination he testified, without objection on his part, that he caused two other men to place in an automobile liquor which Cheatham later transported, and also that he was under indictment for violating the federal prohibition law. But none of his evidence even remotely related to the facts of the instant eases. On cross-examination, after his claim of privilege to refuse to answer was overruled, he made the general admission that he and the two men who put the liquor in the automobile for Cheatham to get were in the liquor business together.
The prohibition agent Cheatham was entitled to have the ease against him removed to the federal court. Maryland v. Soper, 270 U. S. 9, 46 S. Ct. 185, 70 L. Ed. 449. But the removal merely changed the forum; the ease still remained a state case, and did not become one charging a violation of the National Prohibition Act. Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; Carter v. Tennessee (C. C. A.) 18 F.(2d) 850; Miller v. Kentucky (C. C. A.) 40 F.(2d) 820. Appellant’s rights as a witness were therefore precisely the same as they would have been had Cheatham’s ease been tried in the state court. Article 694 of the Penal Code of Texas provides that no person shall be excused from testifying against one accused of violating the state prohibition laws upon the ground that his testimony will tend to incriminate him, “but no person required to so testify shall be punishable for acts disclosed by such testimony.” The immunity thus conferred by the state statute does not protect a witness from prosecution by the United States, for violations of the National Prohibition Act, but such witnesses can only claim the immunity granted by the federal statute, 27 USCA § 47; Jack v. Kansas, 199 U. S. 372, 26 S. Ct. 73, 50 L. Ed. 234, 4 Ann. Cas. 689. It doubtless is true that the immunity granted by the just cited federal statute must, in order to comply with the Fifth Amendment, afford protection from prosecution in the state courts. Counselman v. Hitchcock, 142 U. S. 547, 585, 12 S. Ct. 195, 35 L. Ed. 1110; Brown v. Walker, 161 U. S. 591, 16 S. Ct. 644, 40 L. Ed. 819. The section of the National Prohibition Act granting immunity (27 USCA § 47) meets this test, as it completely protects from prosecution any natural person who, in obedience to a subpoena of any court in any suit or proceeding growing out of any violation of that act, testifies concerning any transaction, matter, or thing under investigation. Although the language used is broad enough to include witnesses for the defense, it was clearly intended to protect only witnesses who appear in obedience to a subpoena and testify truthfully on behalf of the government. United States v. Ernest (D. C.) 280 F. 515; Brady v. United States (C. C. A.) 39 F.(2d) 312. Appellant was a witness, not for the United States, but for the state of Texas, and therefore he does not bring himself within the protection of the federal immunity statute. Besides, since his testimony in Cheatham’s ease had no relation or relevancy to the charges upon which he was tried and convicted, his plea of immunity presented no defense. Heike v. United States, 227 U. S. 131, 33 S. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128. It affirmatively appears that the government has not taken any advantage of him, or sought to punish him for anything he did in connection with the offense of which Cheat-ham was convicted, or to use any of his testimony in Cheatham’s case against him.
The judgments are affirmed.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_appnatpr | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Dennis WILLS, Robert Hardaway, Donald Moore, and George Van Trece, Defendants-Appellants.
Nos. 78-2109, 78-2134, 78-2181 and 78-2223.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 13, 1979.
Decided March 5, 1979.
James R. Vogler, Winston & Strawn, Paul Bradley, Chicago, 111., for defendants-appellants.
Robert W. Tarun, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before TONE and BAUER, Circuit Judges, and MORGAN, District Judge.
The Honorable Robert D. Morgan, Chief Judge of the United States District Court for the Southern District of Illinois, is sitting by designation.
TONE, Circuit Judge.
The four appellants in these consolidated appeals were found guilty of theft from interstate shipments in violation of 18 U.S.C. § 659. The only substantial question presented is whether the articles stolen were “goods or chattels moving as or which are a part of or which constitute an interstate . . . shipment of freight, express, or other property” within the meaning of that statute. We hold that they were and affirm the convictions.
Count 1 of the indictment charged all four defendants with theft of 14 appliances from a loading platform at Spiegel, Inc. at Chicago, Illinois, on July 5, 1977. Count 2 charged defendant Wills with the theft of two appliances from the same platform on the same date. After a bench trial all defendants were found guilty.
There was substantial evidence that the goods in question were stolen by the defendants from the Spiegel’s loading platform as charged in the indictment. Except for a contention by Wills that he did not participate in the theft charged in Count 1, the defendants’ contentions relate to questions other than whether they stole the goods.
We discussed the interstate commerce requirements of 18 U.S.C. § 659 at some length in United States v. Parent, 484 F.2d 726, 729-731 (7th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 79 (1974), and we need not repeat what was said there. In that opinion we quoted with approval the following passage from United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970):
The determination of whether a shipment is in interstate commerce at a given time is essentially a practical one, depending upon the relationship between the consignee, consignor, and carrier, the indicia of interstate commerce at the time of the theft occurs, and the preservation of the congressional intent.
We then added that, “No single factor . . . is conclusive in the determination.”
484 F.2d at 729.
It is unnecessary that the goods in question leave the shipper’s facility or be actually moving in interstate commerce at the time of the theft. United States v. Williams, 545 F.2d 1036, 1039 (6th Cir. 1976); United States v. Astolas, 487 F.2d 275, 279 (2d Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); see United States v. Gollin, 176 F.2d 889, 893-894 (3d Cir.), cert. denied sub nom. Richman v. United States, 338 U.S. 848, 70 S.Ct. 89, 94 L.Ed. 519 (1949). In Williams, the goods were stolen from the shipper’s “loading and shipping facilities.” United States v. Williams, supra, 545 F.2d at 1039. As explained in Astolas, the language of the statute itself suggests that § 659 reaches such thefts:
The scope of the phrase “moving as or which are a part of or which constitute an interstate or foreign shipment” is plainly to be inferred from the list of places from which theft is proscribed. These places include not only railroad cars and tractor-trailers and other modes of transportation, but any “station, station house, platform or depot * * It was intended that a theft from commerce could be committed before the goods were placed on board, and after they are taken off a carrier; it is not required that a shipment be in motion.
487 F.2d at 279; see also United States v. Parent, supra, 484 F.2d at 729-731.
The evidence upon which the interstate commerce issue turns was as follows. Spiegel, a catalog merchant with annual sales of. approximately $360,000,000, received and filled three kinds of customer orders: direct mail orders, telephone orders, and catalog store orders. After receiving an order, Spiegel personnel transmitted to a computer the ordered item’s catalog number, description, and price, the customer’s name, and the destination to which the item was to be shipped. The computer then scheduled the filling and shipment of the order and generated a sales slip and shipping label showing the consignee and his address, the carrier, the date of shipment, and various other data.
The sales slip and shipping label were then delivered by messenger to the area of the warehouse where the ordered item was stored, which, for the goods involved in the instant case, was the upper floors of Spiegel’s West Pershing Road facility. At that point an order picker examined the sales slip and shipping label, picked the packaged item from storage, and delivered it to a checker station. Using a computer terminal connected to the central computer, the checker made sure the item picked was the one ordered, weighed it on an electronic scale connected to the computer terminal, and inserted the shipping label- into the computer terminal’s printer.
The computer calculated a transportation charge and caused it to be printed on the label, which was then affixed to the package containing the ordered item. At the same time the computer billed the customer and credited the account of the common carrier that was to transport the ordered item to the consignee.
Within minutes, the labeled parcel was placed on a conveyor belt, which transported it immediately to the first floor sorting and loading area. There one of the sorters ascertained from the label the designated common carrier and placed the parcel on a flat truck with other parcels that carrier was to transport. Dock hands then wheeled the loaded flat truck onto trailers waiting in the bays of the dock area. Defendants Hardaway, Wills, and Sheldon were Spiegel dock hands assigned to this duty.
Once an item was labeled and placed on the conveyor belt, there was no practical way for Spiegel to interrupt its journey to the destination the computer had printed on the label. Some 10,000 labeled parcels passed through Spiegel’s first floor loading area daily. After labelling, the goods were moved from the storage floor to the carrier’s truck at the dock in less than four hours. A representative of Spiegel testified that trying to find an ordered item on the first floor loading area of Spiegel’s facility “would be like looking for a needle in a haystack.”
All of the parcels referred to in the indictment in the case at bar were labeled for out-of-state destinations. Twelve of the parcels charged in Count 1 were to be transported by United Parcel Service. For this carrier, computer manifests were used instead of traditional bills of lading. The Spiegel computer prepared the manifests during the night following the scheduled departure of the ordered items. The twelve stolen United Parcel Service parcels matched twelve computer manifests introduced in evidence. In addition to the twelve United Parcel items, there were three items covered by straight bills of lading, which were introduced at the trial. Spiegel was unable to locate a bill of lading for the remaining item, but other documentation showed that the item was labeled for shipment to an out-of-state consignee.
Under the circumstances we have described, a parcel’s interstate journey commenced when it was moved by conveyor belt to the dock area, for it was then that Spiegel’s power to prevent it from making its scheduled interstate journey ended. After that, even if the customer cancelled or changed the order, Spiegel could not retrieve the parcel from among the thousands of parcels that were assembled in the loading area. The irrevocability of this commitment to interstate movement was not altered by the chance that if the parcel was damaged en route to the carrier’s vehicle and the damage was discovered it would be removed from shipment. Any goods in the stream of interstate commerce are subject to the chance that they will be held up or diverted through accident before they cross a state line. The statute nevertheless applies from the time the goods enter the stream. It is not always necessary for purposes of § 659, as the decisions discussed above illustrate, that the commitment to interstate commerce be irrevocable, but, when that is the case, the statute is clearly applicable. Accordingly, we conclude that the stolen goods in this case were within the statute.
Wills, and arguably other defendants, contend that the evidence failed to show theft of the parcels from the first floor loading area rather than one of the warehouse floors, and that parcels in the latter area were clearly not an interstate shipment. Although there was no direct evidence that the defendants took the parcels from the loading area, the circumstantial evidence to that effect was sufficient. The loading area was the place where the defendants were assigned to work and where they therefore had ready access to labeled parcels, the contents of which could readily be identified from the label or the container itself. The parcels in question were labeled with computer generated labels. It was the practice to place a parcel on the conveyor for movement to the first floor loading area as soon as it had been labeled at the computer terminal. The inference is strong that the parcels in question were taken from the loading area by the defendants.
Defendant Wills contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. With respect to Count 1, this argument amounts to a challenge to the credibility of the Federal Bureau of Investigation Agent who testified about his observation, while working undercover, of Wills’ participation in the thefts. It is enough to say that questions of credibility are for the trier of fact. With respect to Count 2, Wills challenges the interstate nature of the shipment because of alleged deficiencies in the documentation and failure to prove the value of one of the items, a GE portable color television set. The documentation in evidence was sufficient to show that both items were bound for out-of-state destinations. Concerning the value of the television set, there was evidence that Wills himself told the undercover agent it was worth $200. This, together with the item itself, which was admitted in evidence, constituted sufficient evidence to support the finding of a value in excess of $100. In any event, it was enough to sustain Count 2 that the other item’s value concededly was in excess of $100.
Defendant Moore argues that there was a fatal variance between the charge in the indictment and the government’s evidence. The indictment charged that the stolen goods were “moving as, were part of, and did constitute an interstate shipment.” (Emphasis supplied.) Moore contends that because the conjunctive was used, the government was required to prove all three charges. It was clearly sufficient if one of the three was proved. United States v. Astolas, supra, 487 F.2d at 280; United States v. Barker, 514 F.2d 1077, 1081 (7th Cir. 1975).
The judgments of conviction are _ affirmed.
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_appfed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Billy OSBORNE, Petitioner-Appellee, v. Vinson F. THOMPSON, Warden, Respondent-Appellant.
No. 79-1310.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 28, 1979.
Decided Dec. 20, 1979.
William M. Leech, Jr., Atty. Gen. of Tenn., William P. Sizer, III, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellant. '
William H. Farmer, Federal Public Defender, Robert L. Tucker, Asst. Federal Public Defender, Nashville, Tenn., for petitioner-appellee.
Billy Osborne, pro se.
Before MERRITT and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge.
PER CURIAM.
The State of Tennessee appeals the judgment of the District Court granting Osborne’s petition for a writ of habeas corpus. The District Judge, Thomas A. Wiseman, found that the Tennessee trial court had not made an adequate due process determination of petitioner’s competency to stand trial.
On March 19, 1975, Osborne pleaded guilty in Knox County, Tennessee, Criminal Court to each of five separate indictments, charging first degree burglary, second degree burglary, third degree burglary, attempt to commit a felony, and grand larceny. Prior to the plea, the trial court had granted petitioner’s motion for a psychiatric examination to determine petitioner’s competency to stand trial. On March 6, 1975, a written psychiatric report had been filed stating that petitioner was “marginally” competent to understand the charges brought against him, and to aid in his defense. The report had also disclosed that petitioner had a chronic mental illness and was being maintained on medication.
After petitioner pleaded guilty, the trial judge reserved imposition of judgment for four months. On May 22, 1975, before the four months expired, petitioner was returned to the Criminal Court. Based on his conduct, incoherence, obvious emotional instability and low intelligence, the state court declared him “mentally incompetent.” The same trial judge who accepted the guilty pleas ordered him sent to Central State Hospital for further psychiatric examination. Two months later, Central State filed a report with the court stating that petitioner was “borderline” competent, suffering from mental retardation and would “need special assistance from his attorney.”
On September 19, 1975, when petitioner next appeared before the court, he attempted to withdraw his guilty pleas. The court recessed, deliberated, and five days later reconvened to deny the motion and to entér judgment.
Other than the finding of incompetency made on May 22, 1975, the court made no explicit ruling on competency. The trial court did not conduct a hearing specifically on whether petitioner was competent to stand trial at the time he pleaded guilty to the charges of the indictments. The trial judge on initially accepting the guilty plea, asked primarily a litany of yes or no questions. When asked if anyone was putting pressure on him to force him to plead guilty, petitioner replied “Well, I don’t know. . . . Me [sic] have just got a wife and baby I want to come back to.” Based on remarks by the prosecutor, petitioner believed, justifiably, that his wife would be prosecuted if he did not enter into the plea bargain agreement. Petitioner’s ability fully to understand the gravity of his and his wife’s legal situation, therefore, was of utmost importance.
The District Court held, applying the due process clause, that at some point — either when it accepted the guilty plea or before it imposed judgment four months later — the court should have conducted a hearing regarding petitioner’s competency to plead guilty on March 19, 1975. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). The District Judge reasoned that the initial psychiatric evaluation and the trial judge’s finding that petitioner was incompetent on May 22, 1975, gave the trial court the “responsibility to delve further to determine the defendant’s comprehension.” He concluded that it was “impossible . . . to ascertain from the record whether or not petitioner was capable of entering a guilty plea.”
The District Court further held that, four years later, it is now too late to determine retroactively petitioner’s competence on March 19, 1975, and that the state must start prosecution anew.
We agree with the District Judge’s clear, well-reasoned opinion and commend his diligence in getting to the bottom of a difficult case. Petitioner’s conduct, the state trial judge’s finding of incompetence on May 22, 1975, and the psychiatric reports, were sufficient to cast real doubt on whether petitioner was competent on March 19, 1975, the date on which the pleas were entered. Before he entered judgment, due process in such a case required the trial judge to have conducted a hearing on whether petitioner was competent when he pleaded guilty, or alternatively to have allowed petitioner to withdraw his pleas.
The only evidence that petitioner was competent when he entered his guilty pleas is the first psychiatric evaluation. This report was incomplete. It did not detail the effects of petitioner’s mental illness and the psychotropic drugs on his ability to aid in his defense. In addition the report characterized petitioner’s competence as “marginal.”
The State argues the relevancy of a subsequent psychiatric report that declared petitioner to be competent. These examinations occurred several months after the pleas and after the judicial declaration of incompetence. They did not report on his competence on March 19, 1975, and one said that several months later the examination disclosed a “borderline” mental situation. That report also lends support to the need for a due process hearing on competency.
Accordingly, the judgment of the District Court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
songer_typeiss | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
YUENGLING v. COMMISSIONER OF INTERNAL REVENUE.
No. 5246.
Circuit Court of Appeals, Third Circuit.
March 20, 1934.
John J. Sullivan, of Philadelphia, Pa., for petitioner.
Pat Malloy, Asst. Atty. Gen., and Walter L. Barlow and John H. McEvers, Sp. Assts. to Atty. Gen., for respondent.
Before WOOLLEY, DAYIS, and THOMPSON, Circuit Judges.
DAVIS, Circuit Judge.
This petition involves the income tax liability of Frank D. Yuengling for the year 1928.
He executed an irrevocable trust agreement. It provided that the trustee would use the income of the res to pay premiums on policies of insurance upon the petitioner’s life and designated his wife and children as the beneficiaries ox the trust.
The question here is whether or not that portion of the income of the res which was applied to the payment of premiums on the insurance policies on the petitioner’s life for his family’s benefit is taxable to him. The facts here are substantially the same as those considered by the Supreme Court when it decided this question in Burnet v. Wells, 289 U. S. 670, 53 S. Ct. 761, 77 L. Ed. 1439. Accordingly, upon the authority of that case, we hold that sueh income is taxable to the petitioner.
The second question is determined also by the broad principle that income may include not only ownership but rights or privileges that are merely indicia of ownership. Certain corporations, in which the petitioner owned all 'the capital stock, paid premiums on policies of insurance on the life of the petitioner. The proceeds of the policies were to be paid to the petitioner’s wife and children. The corporations'did not benefit from the policies.
These facts are sufficient to sustain the determination of the Board of Tax Appeals that the petitioner received the benefit of the payments, and they were income to him.
It is the settled administrative practice to regard premiums paid by a corporation on an individual insurance policy on the life of an officer as income to the officer if he is permitted to designate the beneficiary and if the corporation is not directly or indirectly benefited thereby. George M. Adams, 18 B. T. A. 381; N. Boring Danforth, 18 B. T. A. 1221 The payment of sueh premiums by the corporation must be presumed as compensation for services, rather than gifts as the petitioner contends, since a corporation cannot lawfully give away its assets. Noel v. Parrott, 15 F.(2d) 669, 671 (C. C. A. 4), certiorari denied, 273 U. S. 754, 47 S. Ct. 457, 71 L. Ed. 875.
The order of redetermination of the Board of Tax Appeals is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_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".
Frances Hull BROWN, Individually and as Administratrix of the Estate of Robert Ervin Brown, Deceased, Appellant, v. Robert FINCH, Secretary of Health, Education and Welfare, Appellee.
No. 13982.
United States Court of Appeals, Fourth Circuit.
Argued May 8„ 1970.
Decided June 18, 1970.
Clyde C. Randolph, Jr., Winston-Salem, N. C. (Doris G. Randolph and Randolph & Randolph, Winston-Salem, N. C., on brief), for appellant.
J. Howard Coble, Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellee.
Before BOREMAN and WINTER, Circuit Judges, and WOODROW WILSON JONES, District Judge.
PER CURIAM.
Frances Hull Brown (plaintiff), individually and as administratrix of the estate of Robert Ervin Brown (claimant), appeals from the district court’s holding that there was substantial evidence to support the Secretary’s denial of claimant’s social security disability benefits claim. Plaintiff was substituted as party-plaintiff when claimant died during the pendency of this action.
If there is substantial supporting evidence on the record as a whole for the Secretary’s decision, that decision will not be overturned. Laws v. Celebrezze, 368 F.2d 640 (4 Cir. 1966). Here, there is medical evidence which indicates that, although claimant’s August 9, 1960, heart attack restricted his activities to some extent, it did not result in heart enlargement, irregular heart rhythm, heart murmurs or significant heart impairment. Claimant stated to the Veterans’ Administration physician that his doctor had told him he could do eight hours of light work per day. In short, there is ample evidence to support the hearing examiner’s finding that claimant made a normal and satisfactory recovery from his heart attack and that the residuals of this condition would not have prevented claimant from engaging in substantial gainful activity.
On this record the Secretary’s denial of disability benefits will not be disturbed. The judgment below is
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_counsel2 | 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.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Plaintiff-Appellee, v. Clifton CAMERON and Paul Tinson, Defendants-Appellants.
No. 91-3447.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 1, 1991.
Decided Jan. 7, 1992.
Roger S. Bamberger (argued and briefed), Blas E. Serrano, Asst. U.S. Attys., Cleveland, Ohio, for U.S.
Alan C. Rossman (argued and briefed), Cleveland, Ohio, for Clifton Cameron.
Thomas G. Longo (argued and briefed), Cleveland, Ohio, for Paul C. Tinson.
Before MARTIN and MILBURN, Circuit Judges, and JOINER, Senior District Judge.
Honorable Charles W. Joiner, United States District Court for the Eastern District of Michigan, sitting by designation.
JOINER, Senior District Judge.
Clifton Cameron and Paul Tinson appeal the district court’s denial of a motion to dismiss indictments charging them with possession of cocaine base with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Their initial trial ended when the trial court declared a mistrial over defendants’ objections. Defendants allege that retrial would violate the Double Jeopardy Clause of the Fifth Amendment. We disagree, and affirm the district court’s denial of defendants’ motion to dismiss.
I.
Defendants were arrested on March 2, 1990, and indicted March 21, 1990. Their trial began with the impanelling of a jury on February 7, 1991, with Judge Battisti presiding. The government presented its evidence, and rested its case on February 12, 1991.
On February 13, 1991, the Cleveland Plain Dealer published a front-page article entitled: “U.S. Probes Battisti’s Handling of 1988 Case.” Judge Battisti subsequently made the article a part of the record. In pertinent part, the article stated:
The investigation allegedly involves hearings Battisti conducted after he was notified by former U.S. Attorney Patrick M. McLaughlin that a defendant in his court had told an undercover F.B.I. agent he knew someone who could influence the judge.
The defendant, James V. Petrella Sr., 61, was under indictment on federal auto theft charges. Battisti accused McLaughlin of “shabby political maneuvers in a federal court” and claimed Pe-trella’s allegations were unsubstantiated. He laid down new rules in his court concerning any information that might require a judge to remove himself from the case.
Battisti heard the case in which Petrel-la was convicted and sentenced him to three years probation, the first four months of which were to be served in a Youngstown halfway house.
Before leaving office, McLaughlin confirmed he had asked the Justice Department’s Office of Professional Responsibility to investigate Battisti’s handling of the Petrella case.
On February 13, 1991, Judge Battisti held a conference of approximately one hour with defendants’ attorneys, soliciting their views on how best to proceed with the trial in light of the article. Both defendants and the government stated their opposition to declaration of a mistrial. Judge Battisti decided to voir dire the jury regarding the article, and, if the jurors were aware of the content of the article, to declare a mistrial.
When questioned, five of the jurors revealed that they had either read the article, or heard radio reports on the same topic addressed by the article. In light of the jurors’ awareness of an investigation focused upon his handling of a criminal case, Judge Battisti was, appropriately, concerned that the publication of the newspaper article could affect the jurors’ impartiality. Prior to declaring a mistrial, the judge found that there was “manifest necessity to declare a mistrial as a result of [the] publicity ... [and that] [t]hese conditions ... might ... tilt [the] entire proceeding one way or another.” After declaring a mistrial, the judge further explained his reasoning, stating:
My reasons for this, of course, have to do with the fact that the jurors have — a number of the jurors — have read or heard the publicity that appeared in the Plain dealer [sic] this morning. That article will become a part of the record. I don’t think it needs to be explained any further, unless counsel wish for a further explanation from the Court.
It certainly would be unseemly to say the least for me to poll this jury as to whether they’re going to have any confidence in the Judge, and believe him, and follow his instructions after reading this sort of thing that they’ve read this morning, and heard this morning.
(Emphasis added.) Having declared a mistrial, Judge Battisti dismissed the jury, and recused himself from any further consideration of the case.
On March 5, 1991, defendants’ case was transferred to the docket of Judge Manos. Defendants filed their motion to dismiss on March 27, 1991. Judge Manos entered an order denying the motion on May 21, 1991.
On appeal, defendants present this court with a single issue; whether Judge Manos erred in finding that Judge Battisti had not abused his discretion in ruling that he was presented with a manifest necessity for the declaration of a mistrial.
II.
This court has jurisdiction to hear defendants’ interlocutory appeal from the denial of their motion to dismiss on double jeopardy grounds. 28 U.S.C. § 1291; Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977).
It is within a district court’s sound discretion to declare a mistrial. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); Jones v. Hogg, 732 F.2d 53, 56 n. 1 (6th Cir.1984). We review de novo a district court’s denial of a motion to dismiss on double jeopardy grounds. United States v. Goland, 897 F.2d 405, 408 (9th Cir.1990). We look to the record of the initial trial. While the Constitution does not require a trial judge to conduct a hearing on the record, the record must support the finding that manifest necessity justified the declaration of a mistrial. United States v. Bates, 917 F.2d 388, 397 n. 12 (9th Cir.1990); Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 835-36, 54 L.Ed.2d 717 (1978).
The Constitution directs that no person shall twice be put in jeopardy of life or limb for the same offense, whether by being twice punished or twice tried. U.S. Const. Amend. V.; Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970). The Fifth Amendment’s prohibition against twice placing a defendant in jeopardy has been recognized by the Supreme Court as “fundamental to the American scheme of justice,” United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion), in reflecting a policy of finality for the benefit of criminal defendants. See Jones, 732 F.2d at 54. Embodied within the policy of finality is the “valued right” granted to a defendant by the Double Jeopardy Clause “to have his trial completed by a particular tribunal.” Jorn, 400 U.S. at 484, 91 S.Ct. at 557 (citing Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837). The Court described the basis for the prohibition in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), emphasizing that for the state to be permitted to make repeated efforts to convict an individual would violate an idea “deeply ingrained in Anglo-American jurisprudence.” Id. at 187, 78 S.Ct. at 223. Unfettered reprosecution would result in subjecting the accused to “embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Id. at 188, 78 S.Ct. at 223.
The Double Jeopardy Clause, however, will not act as an absolute bar in every case. In some circumstances, a defendant’s right to have his case resolved by a particular tribunal will be subordinate to the larger interest of the public in “fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). When a mistrial has been declared, reprosecution is generally permissible if the declaration came at the request or with the acquiescence of the defendant. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). In the absence of such consent, reprosecution is not barred where a “manifest necessity” exists to declare a mistrial in the defendant’s initial prosecution. Perez, 22 U.S. (9 Wheat.) at 580; Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31; United States v. Sanford, 429 U.S. 14, 16, 97 S.Ct. 20, 21, 50 L.Ed.2d 17 (1976) (per curiam). In Perez, Justice Story stated the standard to be applied in determining whether retrial is permissible following a mistrial declared without the consent of the accused:
We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.
Perez, 22 U.S. (9 Wheat.) at 580. This test has been consistently followed. See Jones, 732 F.2d at 55.
In light of Justice Story’s recognition of the impossibility of stating all the circumstances in which a manifest necessity for declaration of a mistrial may arise, the “manifest necessity” test has never been applied in a mechanical fashion, but is viewed as a flexible standard. Illinois v. Sommerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). It is clear that manifest necessity is not synonymous with absolute necessity, but that a “high degree” of necessity must exist before a mistrial may properly be declared. Washington, 434 U.S. at 506, 98 S.Ct. at 830. Determining whether a high degree of necessity was presented calls for an analysis of each case upon its particular facts. See United States v. Jaramillo, 745 F.2d 1245, 1249 (9th Cir.1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2142, 85 L.Ed.2d 499 (1985). The particular facts in defendants’ case lead us to conclude that Judge Battisti properly exercised his discretion in finding a manifest necessity for declaration of a mistrial.
Reviewing courts are required to respect the setting in which the trial court found itself at the time mistrial was declared. Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-31. In this case, Judge Battisti found himself the subject of a broadly disseminated article questioning the propriety of his handling of a criminal case. In such unusual circumstances it is apparent that Judge Battisti correctly concluded that recusal was appropriate, as the possibility was present that his impartiality might be questioned by the jury. 28 U.S.C. § 455(b). On appeal, defendants argue that while recusal was perhaps a legitimate course of action for Judge Battisti to take, the necessity of recusal, and the existence of a manifest necessity for declaration of a mistrial, are not established by reference to the same criteria. Defendants primarily rely upon United States v. Sartori, 730 F.2d 973 (4th Cir.1984), arguing that as Judge Battisti, having decided to recuse himself, was presented with a feasible alternative to declaration of a mistrial — substitution of judges pursuant to Federal Rule of Criminal Procedure 25(a) — a manifest necessity for mistrial was not presented. Sartori is distinguishable from the facts presented by defendants’ case, and we are not persuaded that Judge Battisti was presented with feasible alternatives to mistrial.
In Sartori, the defendant, a practitioner of “holistic medicine,” accused of selling a chemical compound as a cancer cure, was charged in the district court with mail fraud. After a jury had been impanelled and four government witnesses heard, the district judge declared a mistrial and re-cused himself from further consideration of the case. Id. at 974-75. Prior to trial the judge had informed the parties of his involvement with the American Cancer Society as a “lay leader,” and had twice offered to recuse himself from the case. Id. In explaining his decision to declare a mistrial, the judge stated his belief that his years-long involvement with the American Cancer Society rendered his continued presence at trial inconsistent with the appearance of judicial propriety. Id. At trial, following an unrecorded bench conference, the court heard arguments from the parties regarding alternatives to mistrial, with the parties requesting that the judge continue to preside over the trial. In the alternative, the government suggested that rather than declare a mistrial, the court should request the assignment of another judge to continue the trial pursuant to Federal Rule of Criminal Procedure 25(a). Id. The judge rejected this suggestion, apparently in erroneous reliance on a Fourth Circuit opinion in a civil case indicating that substitution under the Rule was to be discouraged. Id.
In finding that the district court was without a manifest necessity for declaration of a mistrial, the Sartori court identified two errors in the district court’s action. First, the court concluded that substitution was an available alternative to mistrial, and therefore precluded the existence of a manifest necessity. In Harris v. Young, 607 F.2d 1081, 1085 (4th Cir.1979), cert. denied sub nom. Mitchell v. Harris, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980), the court stated:
In determining whether the trial judge exercised sound discretion in declaring a mistrial, we must consider if there were less drastic alternatives to ending the trial. If less drastic alternatives than a mistrial were available, they should have been employed in order to protect the defendant’s interest in promptly ending the trial, and the Commonwealth’s interest in rapid prosecution of offenders.
As defendant Sartori’s trial had only seen a single day of testimony, and because the issues presented by Sartori’s case were neither novel nor too complex for a substitute judge to quickly grasp, the court concluded that substitution was an appropriate less drastic alternative which the trial judge had failed to consider prior to declaring a mistrial. Sartori, 730 F.2d at 976. A judge assigned to complete the trial of Cameron and Tinson would face a very different task, as their trial had proceeded to the conclusion of the government’s casein-chief over four trial days.
Second, the Fourth Circuit found that the trial judge had mischaracterized the problem posed to him, as the question he faced was not whether his impartiality might reasonably be questioned, but whether the risk of an appearance of judicial impropriety constituted a manifest necessity for declaration of a mistrial. Id. at 977. As the trial judge was without an economic or other interest in the outcome of the case, and given that the defendant did not request recusal prior to impanelling the jury, although it was presented with two opportunities to do so, “the risk was simply not great enough to constitute manifest necessity.” Id.
Neither of the bases relied upon by the Sartori court are presented in the case before us. It is clear from the record that Judge Battisti was well aware of the case law applicable to a mistrial declaration and its potential double jeopardy effect. Judge Battisti reviewed the law and plainly did not confuse his analysis of manifest necessity with the criteria for recusal under 28 U.S.C. § 455(a).
Judge Battisti’s concern with juror impartiality mirrors the concerns examined by the Supreme Court in Washington. Where the trial judge ordered a mistrial because the defendant’s lawyer made improper and prejudicial remarks during his opening statement to the jury, the Court, after finding that “in a strict, literal sense, the mistrial was not ‘necessary,’ ” went on to state:
Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors might have been affected by the comment.
Washington, 434 U.S. at 511, 98 S.Ct. at 833 (emphasis added).
The record further reveals that Judge Battisti was made aware of the possibility of substitution under Federal Rule of Criminal Procedure 25(a), which provides:
If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the trial.
The Rule does not define the term “disability,” and we need not attempt to do so here. In light of the unique circumstances facing Judge Battisti, we conclude that he appropriately determined that Rule 25(a) did not present a feasible alternative to mistrial.
In Jaramillo, the Ninth Circuit reviewed and affirmed the declaration of a mistrial in circumstances analogous to those faced by Judge Battisti. The trial judge presiding over defendant Jaramillo’s jury trial was indicted on seven counts by a grand jury on the third day of trial, and immediately declared a mistrial. Id. at 1246. Jar-amillo moved to bar retrial on double jeopardy grounds, arguing, inter alia, that the initial judge had failed to consider the less drastic alternative of substitution under Rule 25(a). The court, reviewing the denial of Jaramillo’s motion, concluded that neither death nor disabling sickness — the two bases for substitution specifically identified by Rule 25(a) — would have an effect upon the integrity of the proceedings held prior to substitution. Id. at 1249. However, in the case of a judge under indictment, the Ninth Circuit found that the purported “disability”
directly implicates the character and integrity of the judge especially in relation to criminal proceedings, the designation of another judge would not remove the appearance of partiality concerning all prior rulings and all actions of the indicted judicial officer, from the inception of the trial. To establish the appearance of justice under such extraordinary circumstances, a new judge would necessarily be compelled to begin the trial anew.
Id. We believe that it is not an abuse of discretion for a judge, alleged to be under investigation for his handling of a criminal case, to determine that this directly impinges upon his ability to properly conduct criminal proceedings before him at the time reports of the investigation are disseminated, and to hold that the designation of another judge would not suffice to protect the integrity of the judicial process. The flexibility of the manifest necessity standard; the requirement to respect the setting in which the trial judge found himself; the “historically unique” problems faced by a trial judge under indictment, calling into question his moral fitness to sit as a judge; removed Rule 25(a) from the realm of available less drastic alternatives to mistrial. Id. We conclude that Judge Battisti’s refusal to request substitution under Rule 25(a) did not render his decision to declare a mistrial an abuse of discretion.
Defendants lastly argue that Judge Bat-tisti, in effect, sua sponte declared a mistrial, and failed to allow defense counsel a meaningful opportunity to research and present the alternatives to mistrial which defendants have examined in their brief on appeal. This argument is not supported by the record and we reject it.
A series of factors applicable to determine whether a trial court abused its discretion in declaring a mistrial have been stated by the Ninth Circuit:
Has the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered alternatives to a mistrial and chosen the alternative least harmful to a defendant’s rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of a mistrial?
United States v. Bates, 917 F.2d 388, 396 (9th Cir.1990). From the record it can only be concluded that Judge Battisti acted in accordance with these factors. Judge Bat-tisti conducted an unrecorded conference with defendants’ attorneys prior to declaring the mistrial. On the record, while presenting their objections to a mistrial, and having argued the possibility of substitution under Rule 25(a), defense counsel recognized that a discussion considering alternatives to mistrial had been held, and that the judge was not acting precipitously:
THE COURT: I should also like to note on the record that the defendants were given an opportunity to raise their objections prior to my decision this morning. I don’t mean anything by that other than the fact that that happened, and I called you into chambers. I discussed the matter with you. We did not put it on the record, because we didn’t — it was known that I was going to come out into the courtroom and put this on the record. But, you were not caught by surprise when you came into the courtroom this morning. We had a long discussion. We discussed the matter for at least an hour in my chambers.
MR. LONGO: That is true, and I didn’t mean to suggest that it wasn’t discussed.
THE COURT: I know that. I’m only putting it on the record. And you have no — you cannot possibly have failed to recollect that, Mr. Rossman; is that right?
MR. ROSSMAN: No, absolutely not, Judge. I didn’t mean to suggest that was the case, either.
The record is unambiguous. Defendants’ contention that Judge Battisti failed to carefully consider his decision and explore alternatives is without merit. We note again that a trial court is not required to conduct a formal hearing on the record regarding its decision, Washington, 434 U.S. at 516-17, 98 S.Ct. at 835-36, and conclude that the record supports the finding of a manifest necessity.
AFFIRMED.
. Defendants contend that an additional less drastic alternative was open to Judge Battisti in that “he could have continued with the trial until the jury reached a verdict, and if a guilty verdict was returned, another judge could have presided over the sentencing of the Defendants." In light of our conclusion that Judge Battisti appropriately recused himself from the case, we find that defendants’ proffered alternative did not constitute an available alternative.
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_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.
SAINSBURY v. PENNSYLVANIA GREYHOUND LINES, Inc.
No. 6110.
United States Court Of Appeals Fourth Circuit.
Argued July 5, 1950.
Decided August 10, 1950.
George B. Woelfel, Annapolis, Md., and Melvin J. Sykes, Baltimore, Md. (Paul Berman, Sigmund Levin, Baltimore, Md., and Thomas J. Curley, Jr., Annapolis, Md., on brief), for appellant.
F. Gray Goudy, Baltimore, Md. (H. Beale Rollins, Baltimore, Md. .on brief), for appellee.
Before PARKER, Chief Judge, SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
This civil action was instituted in the Circuit Court for Baltimore County, Maryland, by Joseph C. Sainsbury, a boatswain’s mate, third class, in the United States Navy. The case was properly removed on the ground of diversity of citizenship to the United States District Court for the District of Maryland by the defendant, Pennsylvania Greyhound Lines, Inc. The District Court, sitting without a jury, entered judgment for the defendant and plaintiff has duly appealed.
On June 24, 1949, plaintiff was injured, allegedly due to the negligence of defendant or its agent, when a bus, owned and operated by defendant and on which plaintiff was a passenger, ran off the road and struck an embankment. Plaintiff suffered serious injury as a result of the accident — eight broken ribs, a fracture of the leg and additional minor injuries.
After the accident, which occurred near White Marsh, Maryland, plaintiff was removed to the Johns Hopkins Hospital in Baltimore for first aid treatment, but because of crowded conditions there he had to be taken to a downtown hotel. After some hours at the hotel he went to the United States Marine Hospital and, less than a day later, he was transferred to the Naval Hospital at Annapolis, where he was confined for more than three months. Plaintiff was twenty-three years of age at the time of the accident and had received the equivalent of a high school education.
The claims adjuster for the defendant, T. Benjamin Weston, paid for the treatment given plaintiff at Johns Hopkins Hospital, for ambulance services and for the hotel accommodations which he had procured for the plaintiff. Weston visited the plaintiff once four or five days after the accident and again on July 16, 1949, when he was accompanied by his friend, a Mr. Smith. Weston was an attorney-at-law and this fact was known to the plaintiff.
We quote from the District Court’s opinion, as follows:
“On this second visit this representative of defendant (Weston) asked plaintiff whether he had considered settling ¡his claim for injuries with the defendant and what he would be willing to accept in full settlement.- Plaintiff replied that he had not reached any conclusion ' in the matter, stating that he wanted to speak first to the legal representative of the Navy or to some other lawyer, but asked the claims adjuster what he thought would be a fair settlement, to which the latter replied that he thought $500.00 would be just and reasonable. Plaintiff thereupon said that he understood persons with similar injuries had obtained larger compensation, to which the claims adjuster rejoined that such was true but only in cases of non-service persons, stating that those in the service, like the plaintiff, were in a different situation in the eyes of the law because they obtained from the Government, free of charge, medical and hospital care and also were entitled to disability payments in the event of injury, so that in his present case, he would be entitled to recover from the defendant on account only of the pain that he may have suffered as a result of his injuries.
“After some further discussion, during which plaintiff explained — which the claims adjuster did not deny — that the Navy doctors had told him, the plaintiff, that full recovery from his knee injury was problematical and that an operation might be necessary, plaintiff agreed to accept the claims adjuster’s proposal.”
Plaintiff testified that Weston told him there was no need of seeing another lawyer or legal officer because that would not do any good for $500.00 was about the maximum he could hope to recover under the circumstances. Defendant, because of the testimony of Smith and Weston, argues that no discussion as to lawyers or permanent disability took place; but the previous quotation from the District Judge’s opinion and his statement at the end of his opinion that he gave “more credence to plaintiff’s than to Weston’s version of the entire conversation leading up to the execution of the release” is a complete answer to defendant’s contention.
Plaintiff executed a release of any claim for injuries received in the accident in reliance upon Weston’s representations and in consideration therefor was presented with a check for $500. Plaintiff, after talking with various persons in the Naval Hospital, subsequently decided that he was entitled to more than $500 as compensation for his injuries. He returned the check without endorsement but defendant refused to accept it. After consultation with an attorney, the present suit for damages sustained in the accident was instituted by plaintiff. Defendant claims that the release executed by plaintiff precludes him from prosecuting this litigation. Plaintiff, however, contends that this release was obtained by fraud and is therefore invalid because Weston misrepresented plaintiff’s legal fights.
The representation by Weston to plaintiff that because he was in the service he could recover only for pain and suffering was a false statement of the law. It is generally well settled that the fact that the plaintiff may receive compensation from a collateral source (or free medical care) is no defense to an action for damages against the person causing the injury. See Standard Oil Co. of California v. U. S., 9 Cir., 153 F.2d 958, 963, affirmed 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067, and the cases therein cited; note, 22 A. L.R. 1558; note, 18 A.L.R. 678-683; McCormick, Damages, 310 note 2, and 324 (1935); 15 American Jurisprudence, Damages, §§ 78, 200-201; Restatement, Torts, § 920, Comment e. It is inconceivable that any member of the bar could have made a statement such as the one made by. Weston without knowledge of its falsity or without acting with a reckless disregard for the truth.
The rule is also well’ established that when a lawyer makes a misrepresentation of law to a layman relief may be afforded; even though the layman knows the lawyer represents an antagonistic interest. Any other rule would be unconscionable. See Rusch v. Wald, 202 Wis. 462, 464, 232 N.W. 875; Restatement, Torts, § 545, Comment d; 23 American Jurisprudence, Fraud and Deceit, § 48; Prosser, Torts, 761 note 81 (1941), 5 Williston, Contracts, §§ 1487, 1495 and note 4 (1937).
Nevertheless, the District Judge found for the defendant on the ground that the plaintiff had no right to rely on the statement made to him by Weston. The District Judge stated in his opinion: “* * the law does not provide protection to an individual against a contract that he has improvidently or carelessly made in settlement for injuries suffered if, being of adult age, with a reasonable amount of education and intelligence and in possession of his normal faculties, he sees fit, in the absence of duress or pressure, to accept statements made by or on behalf of the person by whom he has been injured, the falsity of which he nevertheless could, by reasonable inquiry, have ascertained.”
We believe that the District Judge’s conception of the law in this respect is erroneous and that the proper rule is in accord with the view expressed by this Court in Bishop v. E. A. Strout Realty Agency, 4 Cir., 182 F.2d 503, 505. That was an action for deceit based on the fraudulent representations of a real estate agent concerning the depth of water at a fishing camp. In that case, Judge Parker said:
“We do not think that plaintiffs are precluded of recovery because they accepted and relied upon the representations of Davis as to the depth of the water without making soundings or taking other steps to ascertain their truth or falsity. The depth of the water was not a matter that was apparent to ordinary observation; Davis professed to know whereof he was speaking; and there was nothing to put plaintiffs on notice that he was not speaking the truth. There is nothing in law or in reason which requires one to deal as though dealing with a liar or a scoundrel, or that denies the protection of the law to the trustful who have been victimized by fraud. The principle underlying the caveat emptor rule was more highly regarded in former times than it is today; but it was never any credit to the law to allow one who had defrauded another to defend on the ground that his own word should not have been believed. The modern and more sensible rule is that applied by the Court of Appeals of Maryland in Standard Motor Co. v. Peltzer, 147 Md. 509, 510, 128 A. 451, where it was held not to be negligence or folly for a buyer to rely on what had been told him. This is in accord with the modern trend in all jurisdictions which is summed up in A.L.I. Restatement of Torts, sec. 540 as follows:
“ ‘The recipient in a business transaction of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.’ ” (Italics ours.)
In McGrath v. Peterson, 127 Md. 412, 96 A. 551, 553, the Court of Appeals of Maryland set out an even more liberal rule in regard to avoiding contracts for fraud than obtains in the case of an action for deceit, stating that: “In an action by one party against the other to enforce the contract, a plea of fraud may be sustained, even though the defendant may have been wanting in ordinary prudence in relying on the other’s representations as to the tenor or contents of the writing.”
See also Meyers v. Murphy, 181 Md. 98, 28 A.2d 861; Columbia Paper Bag Co. of Baltimore City v. Carr, 116 Md. 541, 551, 82 A. 442, 446; Russell v. Carman, 114 Md. 25, 78 A. 903; Wilson, Close & Co. v. Pritchett, 99 Md. 583, 58 A. 360; Prosser, Torts, 747 et seq. (1941); 5 Williston, Contracts, § 1516 (1937).
In the case before us the reasons for vitiating the release are more cogent than in any of the cases which we have cited. Lawyers are, or should be, regarded as possessed of knowledge and integrity beyond that of most of their fellows, certainly above the level of the market place. We find nothing unreasonable or imprudent in the reliance of the plaintiff upon the words of this attorney who had won the plaintiff’s confidence through his friendly overtures and through his membership in an honorable profession.' As between the parties to the release it is, of course, immaterial whether the fraud is of the factum or the inducement. See Meyers v. Murphy, supra.
We, therefore, hold that the District Court erred in its decision that the release was valid and thus contributed a defense to the plaintiff’s claim.
Defendant has. filed a motion to dismiss this appeal, based upon happenings on which the District Judge had no opportunity to pass. This motion reads:
“Pennsylvania Greyhound Lines, Inc., the Appellee, by H. Beale Rollins and F. Gray Goudy, its attorneys, respectfully moves this Honorable Court to dismiss the appeal in the above entitled case, and for reason therefore, says:
“That the Appellant has acquiesced in and accepted the findings of the trial court and waived his right of appeal by endorsing, cashing and collecting Appellee’s $500.00 settlement draft as is shown by Plaintiff’s Exhibit No. 1 Tr. p. 210; that said draft was issued to Appellant by Appellee in consideration of the execution of releases under seal, Defendant’s Exhibits 1 and 2 Tr. pp. 211, 212, in full and final settlement of all claims of the Appellant against the Appellee arising out of a bus accident June 24, 1949; that prior to January 20th, 1950, the Appellant refused to endorse the said draft and attempted in this litigation to void and rescind the aforesaid releases and obtain judgment in his favor against Appellee for injuries in the aforesaid accident; that Appellant made a tender of the said draft without endorsement at the trial of the issues herein on December 14th, 1949, Tr. p. 24; that the trial court found against the Appellant in its opinion of December 31st, 1949; that thereafter on or about January 20th, 1950, the Appellant endorsed, cashed and collected the said draft, which affirmative act puts beyond question the voidability of the releases aforesaid, the sole question brought to this Honorable Court on appeal.
“Wherefore, your Petitioner prays: '"“‘That the appeal be dismissed with proper costs to the Appellee.”
This draft, not endorsed, was verbally tendered to defendant’s counsel, at the trial, by plaintiff’s counsel arid the draft was formally offered in evidence. The District Judge filed his opinion in favor of defendant December 31, 1949. The draft was endorsed with plaintiff’s name on January 20, 1950. The draft, on its face, contained the following words: “Settlement in Full of all claims arising out of accident on June 24th, 1949, at White Marsh, Md.” Printed on the back of the draft above the place where the endorsement was made, were the following words: “Make All Endorsements Below. The Amount thereof is Hereby Accepted by the Undersigned as Settlement in Full of the Claim or Account Stated.” On February 6, 1950, formal judgment was rendered in favor of defendant in the District Court. An appeal was noted by plaintiff On February 28, 1950;
As to what actually occurred as to the draft, we quote the following from appellant’s brief:
“When Judge Coleman’s opinion was filed, on December -31, 1949, the appellant was on duty in the Mediterranean. Mr. Woelfel, who was then sole counsel for the appellant, was unable to contact appellant until after Jan. 19, 1950, on which date the appellee’s settlement draft, having been outstanding six months without being cashed, by its own terms became void. In order to save the check for the appellant and avoid future dispute about cashing it if appellant decided not to appeal, Mr. Woelfel rubberstamped on the back of the check the words ‘For Deposit to Credit of’, signed the appellant’s name thereunder, and opened an account for appellant in the Annapolis Banking and Trust Company, on January 20, 1950, a day after the check, by its own terms became void. The bank was so dubious about the endorsement that it refused to give Mr. Woelfel a bank book to forward to the appellant until the check cleared^ A comparison of appellant’s signature on the release with the signature on the back of the settlement draft will quickly establish that the draft was not endorsed by the appellant.
“The appellant did not know that the draft was cashed until some time after the account for him had been opened by Mr. Woelfel, and as soon as appellant learned of Judge Coleman’s decision he authorized counsel to prosecute this appeal and tender the proceeds of the settlement draft; and a certified check for $500 was paid into the registry of this court less than a week after this appeal was docketed, to guar-' antee payment of that sum to the appellee in the event the judgment below is reversed.
“Mr. Woelfel’s sole purpose in cashing the draft was to preserve appellant’s rights until he could contact appellant to find out whether appellant desired to appeal the judgment of the court below. Had the appellant decided to abide by the judgment below, cashing the draft was intended to avoid any dispute over the right to cash the draft which on its face would have been invalid after January 19, 1950; and if, as was the fact, appellant would decide to appeal, the proceeds of the draft could be tendered into court and appellee thus fully restored to the status quo.”
On oral argument before us, Mr. Woelfel stated that he secured the draft from the files of the District Court.
We are inclined to accept these statements implicitly, for the statements are entirely consistent with the record before us. But even if we do not accept these statements as true, we yet think the motion to dismiss must be denied on the ground that there is absolutely no showing by defendant that, under the circumstances, Mr. Woelfel had any authority, express or implied, to deal with the draft so as to impair the rights of plaintiff. No such authority may be implied from the mere relationship of client and counsel. United States v. Beebe, 180 U.S. 343, 21 S.Ct. 371, 45 L.Ed. 563; Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877, 66 A.L.R. 102; 5 American Jurisprudence, Attorneys at Law, §§ 70, 98. And there is not a shred of evidence here to show either that Mr. Woelfel had such authority from his client or that plaintiff subsequently ratified this action of his counsel.
This renders utterly inapplicable the many quotations in defendant’s brief. Thus, in Latrobe v. Dietrich, 114 Md. 8, 78 A. 983, 988, the court quoted with approval, from Grymes v. Sanders, 93 U.S. 55, 23 L.Ed. 798: “‘But if after he discovers the fraud he remains silent, under circumstances in which silence would indicate acquiescence; or, if he act or deal in relation to the subject-matter in such a mode as to imply a willingness to stand by his bargain, he is considered as ratifying it, and he cannot afterwards avoid it" (Italics supplied.)
See, also, Restatement, Contracts, § 484, where the following appears: “The power of avoidance for fraud or misrepresentation is lost if the injured party after acquiring knowledge of the fraud or misrepresentation manifests to the other party to the transaction an intention to affirm it, or exercises dominion over things restoration of which is a condition of his power of avoidance, * * And, see, Brassel v. Electric Welding Co., 239 N.Y. 78, 145 N.E. 745, 746; 12 Am.Jur., Contracts, § 449; 17 Corpus Juris Secundum, Contracts, §445.
Since we have held that the release signed by plaintiff is invalid and that the conduct of plaintiff’s attorney in handling the draft is no defense to plaintiff’s claim, the judgment of the District Court is reversed. Defendant, apart from the question Of the release, has admitted its liability. The case is, therefore, remanded to the District Court with instructions to proceed to the determination of the amount of damages to which plaintiff is entitled.
Reversed and remanded.
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_casetyp2_geniss | C | 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 - torts - other torts. 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".
Nathaniel A. DENMAN, Plaintiff, Appellant, v. Ernest J. WHITE, Jr., Defendant, Appellee.
No. 6066.
United States Court of Appeals First Circuit.
April 24, 1963.
Nathaniel A. Denman, pro se.
Mark R. Joelson, Atty., Dept. of Justice, with whom John W. Douglas, Acting Asst. Atty. Gen., W. Arthur Garrity, Jr., U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on brief, for appellee.
Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.
GIGNOUX, District Judge.
This action was' brought by appellant to recover damages for defamation from appellee, a colonel in the United States Air Force. The district court entered summary judgment in favor of appellee on the ground that the allegedly defamatory statements had been made in the discharge of appellee’s official duties, and were therefore absolutely privileged under the rule of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959) and related eases.
On- January 15, 1961, Texas Tower 4, a United States Air Force radar installation located in the Atlantic Ocean seventy miles southeast of New York City, collapsed during a storm and fell into the sea, causing the death of 28 Air Force and civilian personnel. On January 16, a newspaper, the New Bedford Standard-Times, published a number of comments by appellant, a registered professional engineer of Falmouth, Massachusetts, which were critical of the conduct of the Air Force in the erection and maintenance of the tower. The article, which was headlined “Cape Engineer Charges Tower Flaw Two Years Old,” quoted appellant as charging that the Air Force “was aware of, or at least surmised, structural damage of Texas Tower 4” as far back as 1958 or early 1959.
At this time, appellee was the Commander of Otis Air Force Base, Massachusetts. One of the units then stationed at Otis Air Force Base was the 4604th Support Squadron, which unit included Texas Tower 4.
On the afternoon of January 16, the assistant to the editor of the Standard-Times telephoned appellee and requested a statement with respect to appellant’s charges. As a result, a conference was held in appellee’s office at Otis Air Force Base on the morning of January 17, which was attended by the reporter who had interviewed appellant, appellee, and several other Air Force, officers, including the Commander of the 4604th Support Squadron and the Base Information Officer. It was during this conference that appellee made the allegedly defamatory statements upon which this action is predicated. These statements, as reported in the January 17 issue of the Standard-Times, under the headline “Otis Officer Calls Tower Criticism ‘Irresponsible’,” were to the effect that appellant’s charges that Texas Tower 4 had been unsafe since 1958 were “irresponsible” and “distortions of the fact,” the only effect of which would be to add to the grief of the families of the 28 men aboard the structure when it collapsed and disappeared.
Appellant then brought this suit in the Barnstable County, Massachusetts, Superior Court alleging that appellee had “publicly, falsely, and maliciously” defamed him “willfully and knowingly, and not in the performance or furtherance of any fiduciary or professional obligation or status * * * but * * * for the fulfillment of his own personal design and intent.” On appellee’s motion, the cause was properly removed to the United States District Court for the District of Massachusetts under 28 U.S. C. § 1442a.
In the district court, appellee filed an answer asserting, inter alia, that the statements complained of had been made in the performance of his official duties. He subsequently filed a motion for summary judgment, with three supporting affidavits. One, by appellee himself, recited that appellee at the time of his statements was Commander of Otis Air Force Base; that one of the units assigned to the Base was the 4604th Support Squadron, which included Texas Tower 4; and that appellee had made the statements complained of in the performance of his official duties as Base Commander, under the authority of A. F.R. 190-6, in response to a newspaper request for information in regard to the collapse of Texas Tower 4. A second affidavit, by appellee’s commanding officer, Major General Henry Viccellio, confirmed that appellee was the Commander of Otis Air Force Base on January 16 and 17, 1961 and that one of his responsibilities as Base Commander was operating the Base Information Program in accordance with A.F.R. 190-6. The third affidavit, by the Director of Information Services, Office of the Secretary of the Air Force, Major General Arno H. Luehman, stated that affiant was “responsible for planning, establishing and supervising the Air Force Information Program as established by Air Force Regulation 190-6”; that appellee as Base Commander had the duty, either directly or through his Information Officer, to furnish news media at their request with information concerning matters affecting his command; and that in his capacity as Base Commander it was appellee’s duty “in respect to the charges attributed to [appellant in the Standard-Times] * * * and the resulting query * * * of that newspaper, * * to present what he knew, or believed to be a factual presentation of the circumstances surrounding the printed charges, availing himself of personnel within his jurisdiction who were knowledgeable of the facts and circumstances.” In reply, appellant filed affidavits of himself, of Bruce A. Grassfield, who had been Staff Procurement Officer on the Base, and of Elnor M. Phelan, the widow of one of the men lost in the disaster. The district court granted appellee’s motion for summary judgment. This appeal followed.
In Barr v. Matteo, supra, and Howard v. Lyons, supra, the two Supreme Court cases upon which the district court relied in support of its ruling, the Supreme Court held that individual officers of the United States Government, who issued public statements in the discharge of their official duties, were protected by an absolute privilege from personal liability in defamation actions. The justification for this privilege was stated in the opinion of Mr. Justice Harlan in the Barr case to be that “ * * * officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” 360 U.S. at 571, 79 S.Ct. at 1339, 3 L.Ed.2d 1434.
Appellant here does not question the Barr doctrine, but rather urges upon us that the rule of that case is not applicable to the facts of this case because appellee’s statements were not made by him in the discharge of his official duties. We find no merit in this contention. A.F.R. 190-6 establishes an Air Force Information Program, a basic objective of which is “to fulfill the obligation of keeping the American public informed of Air Force activities.” A.F.R. 190-6 (1). It states that this aspect of the program is to consist of “collecting, analyzing, and passing along to the public unclassified information about the Air Force and its activities.” A.F.R. 190-6 (1) (b). The regulation also designates the persons responsible for carrying on the information program, and with respect to Air Force bases it specifically provides that the base commander will “(1) Operate the information program within his command” and “(2) Coordinate the information actions and activities of tenant and attached units.” A.F. R. 190-6(2) (d). The commander of each tenant organization is similarly directed to “coordinate information activities with the base commander.” A.F.R. 190-6(2) (f). It seems clear that under A.F.R. 190-6 it was within appellee’s authority as Commander of Otis Air Force Base to release to the public unclassified information relative to the activities of units assigned to the Base, both those units which were within his primary, or tactical, command and those units which were subject to his jurisdiction as Base Commander because stationed at the Base as tenant or attached units. Since appellee’s published comments on the Texas Tower disaster related directly to an activity of an Air Force unit which was assigned to appellee’s base, we have no doubt that, as certified by his superior officers, they were authorized, if not required, by A.F.R. 190-6.
Appellant argues, however, that since Air Force Regulation 190-10 imposes on the commander of the base nearest an accident the responsibility of releasing information as to accidents as quickly as possible, and since there were other bases nearer the location of Texas Tower 4 than Otis Air Force Base, the whole matter of the collapse of Tower 4 was no official concern of appellee. Even if appellant is correct that some other base commander had the primary duty of releasing information as to the accident, we agree with the district court that the matter was still one which concerned a unit assigned to appellee’s Base, and on which he was clearly authorized by A.F.R. 190-6 to release information to the press. Upon this point, the opinion of Mr. Justice Harlan in Barr v. Matteo, supra 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d 1434, is pertinent:
“That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.”
Even if, however, it be conceded that appellee’s conduct in releasing information to the press concerning the Tower 4 collapse was not in technical compliance with applicable Air Force regulations, we think it clear that the Supreme Court in Barr v. Matteo, supra, “expressly rejected a rigid scope of duty, as literally prescribed by rule or regulation, in favor of a more generalized concept of line of duty.” Preble v. Johnson, supra note 2, 275 F.2d at 278. The opinion of Mr. Justice Harlan states:
“The fact that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint * * * ” 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d 1434.
And again, the concurring opinion of Mr. Justice Black concludes:
“It is enough for me here that the press release was neither unauthorized nor plainly beyond the scope of Mr. Barr’s official business, but instead related more or less to general matters committed by law to his control and supervision. See Spalding v. Vilas, 161 U.S. 483, 493, 498-499 [16 S.Ct. 631, 40 L.Ed. 780].” 360 U.S. at 577-78, 79 S.Ct. at 1343, 3 L.Ed.2d 1434.
Thus, as stated by Murrah, C. J., in Preble v. Johnson, supra, it seems fairly plain that under the rule of Barr v. Matteo “statements which are neither strictly authorized by, nor in furtherance of, some rule or regulation may nevertheless be in line of official duty, hence privileged, if they are deemed appropriate to the exercise of the utterer’s office or station.” 275 F.2d at 278. Measured by this standard, we have no doubt that the statements challenged here, which were made in response to a newspaper request for comment upon the implications of Air Force negligence contained in appellant’s quoted charges with respect to a unit assigned to appellee’s base, were “an appropriate exercise of the discretion which an officer of [appellee’s] rank must possess if the public service is to function effectively.” Barr v. Matteo, supra, 360 U.S. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d 1434. We conclude that, under the circumstances of their issuance, appellee’s statements were well within the “outer perimeter” of his line of duty, and therefore within the protection of the asserted privilege.
Only one other question is raised on this appeal. Appellant appears to suggest that the privilege asserted by appellee protects only statements of fact and not expressions of opinion, or comment. More specifically, he asserts that appellee’s use of such words as “irresponsible” and “distortions of the fact,” and the reference to grieving families, was an attack upon him personally, and, as such, outside the privilege. We do not agree with appellant’s interpretation. Appellee’s characterizations related to appellant’s charges, not to his character. As such, they clearly related to the matter in dispute and were well within the range of fair comment upon the matters appellee was privileged to publish. A privilege is not lost by its forceful exercise. Cf., Beauharnais v. Pittsburgh Courier Publishing Co., 243 F.2d 705 (7th Cir. 1957); Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 61, 80 N.E.2d 16, 19 (1948). We intimate no view as to whether the privilege accorded a government official by Barr and Howard would permit a collateral personal attack upon the party he is seeking to answer when the latter’s character is not itself directly in issue. Cf., Union Mutual Life Ins. Co. v. Thomas, 83 Fed. 803 (9th Cir. 1897); Sacks v. Stecker, 60 F.2d 73 (2d Cir. 1932).
We hold that the statements made were absolutely privileged, and affirm the judgment of the district court.
Judgment will be entered affirming the judgment of the district court.
. A.F.R. 190-6 (effective December 2, 1960) is entitled “Air Force Information Program,” and provides in pertinent part:
1. What the Information Program Is. The commander uses the information program to keep his personnel informed, and motivated for maximum production and service, and to fulfill the obligation of keeping the American public informed of Air Force activities. The four fields of operations are internal information, public information, community relations, and historical activities.
*****
b. Public information activities consist of collecting, analyzing, and passing along to the public unclassified information about the Air Force and its activities (see AFR 190-12). This aspect of the program is based on two principles:
(1) The full record of the Air Force should be available to the American people, subject only to security restric tions.
(2) The Air Force has a responsibility to report to the American people on its use of resources, both human and material.
*****
2. Who is responsible.
*****
(d) Air Force Bases. The commander of each Air Force base or similar organization will:
(1) Operate the information program within his command.
(2) Coordinate the information actions and activities of tenant and attached units. This responsibility includes providing support and facilities for the conduct of information activities.
* * * * *
(f) Tenant Units. The commander of each tenant organization will coordinate information activities with the base commander.
*****
. The competent allegations in appellant’s affidavits raise no controverted issues of fact material to this appeal. For example, the pertinent averments in appellant’s own affidavit do no more than assert by way of conclusion that appellee’s statements were not made pursuant to his official duties, obviously not a matter within appellant’s personal knowledge. Fed. R.Civ.P. 56(e). Cf., Preble v. Johnson, 275 F.2d 275, 279 (10th Cir. 1960). Similarly, the affidavit of Elnor M. Phelan simply recites that appellee’s wife had informed her that appellee “had nothing to do with the Texas Tower Squadron”, a matter neither within affiant’s personal knowledge nor admissible in evidence. Fed.R.Civ.P. 56(e).
. The classic statement of the reason for the privilege is that of Learned Hand, C. J., in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950), as quoted in part by Justice Harlan in Barr v. Matteo, 360 U.S. at 571—72, 79 S.Ct. at 1339-1340, 3 L.Ed.2d 1434:
“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * *
“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.
* !¡t *»
. See note 1, supra.
. In addition to being Base Commander, appellee was also Commander of the 551st Aircraft Early Warning and Control Wing, which was stationed at the Base. The 4604th Support Squadron was not subject to appellee’s tactical command in his latter capacity because it was a part of another wing, located at Stewart Air Force Base, New York. However, it is not disputed that the 4604th Support Squadron, being attached to the Base, was within appellee’s jurisdiction as Base Commander.
. A.F.R. 190-10, which is entitled “Release of Information on Accidents,” provides in pertinent part:
“2. Who Will Release Information. The commander of the base nearest the accident will give news media all releasable information as quickly as possible.”
Appellant’s affidavit raises an issue of fact as to whether or not Otis Air Force Base was the nearest base to the site of the disaster, an issue which, however, becomes immaterial in view of our holding as to the applicability of A.F.R. 190-6.
Question: What is the second general issue in the case, other than economic activity and regulation - torts - other torts?
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_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 v. William Edward RABB et al. Appeal of William Edward RABB, Appellant.
No. 71-1368.
United States Court of Appeals, Third Circuit.
Argued Oct. 21, 1971.
Decided Dec. 13, 1971.
Aldisert, Circuit Judge, concurred and filed opinion.
John G. Graham, McGlynn, McGlynn, Ruprecht & Graham, Newark, N. J., for appellant.
William Braniff, Asst. U. S. Atty., Newark, N. J., for appellee.
Before ALDISERT, GIBBONS and MAX ROSENN, Circuit Judges.
OPINION OF THE COURT
MAX ROSENN, Circuit Judge.
This is an appeal by William E. Rabb from a conviction in the District Court for the District of New Jersey for robbing a Federally insured bank, and putting lives in jeopardy during that robbery, in violation of 18 U.S.C. § 2113(a). Only one significant issue is raised in this appeal: Whether the district court was correct in denying the jury’s request to have a portion of the transcript read to them.
Rabb was tried together with a co-defendant, one James Phillips. A third defendant, also charged with the same offenses, was severed from the case because his attorney was not ready to proceed. As to Rabb and Phillips, the evidence presented at trial varied. Phillips was connected with the crime by hard physical evidence: a fingerprint, found on the car used in the commission of the robbery. Rabb, however, was convicted solely on the basis of identification evidence — the testimony of three witnesses, Edward Martini, a bank teller, Richard Weber, another bank employee, and Harry G. Stoothoff, Jr., who was driving past the bank at the time of the robbery. Weber and Martini both made their identifications although the person they claimed to be Rabb was wearing a white handkerchief around his face. Stoothoff saw a man he identified as Rabb in the getaway car without a mask.
After the jury had deliberated about two hours, they returned and requested a reading of the testimony of Weber and Stoothoff. The court refused the request, but read its summary of the testimony of the two witnesses, and added that if the jury had a different recollection of the testimony they should use it to guide them. Objections were taken both to variations in the judge’s summary from the testimony actually given and to the failure to read the full testimony of these two witnesses.
Some confusion exists in the testimony as to whether or not Rabb’s attorney objected specifically to the refusal of the trial judge to grant the request by the jury to have part of the transcript read. There is no doubt, however, that the attorney for Phillips did make such an objection. Our reading of the transcript convinces us that both attorneys were acting in unison at the time, and that the judge in fact understood that the objection made by Phillips’ attorney applied to both defendants.
The testimony which the jury desired to have read involved about forty pages. Rabb was convicted and sentenced to twenty years.
Normally, a request by the jury to have a portion of the transcript read back to them lies within the broad discretion of the trial judge. United States v. Chicarelli, 445 F.2d 1111 (3d Cir. 1971). The rationale behind a refusal on the part of trial judges to allow a reading of a portion of the testimony is twofold: first, because these requests may slow the trial; and second, because a reading of only one portion of the testimony may cause the jury to give that portion undue emphasis.
In the instant case, neither of these reasons could have provided a basis for the court’s refusal. The eye witness testimony of the three witnesses identifying appellant was the only evidence linking him to the crime. The testimony of all three witnesses tended to interrelate since they all described features and clothing allegedly those of appellant. Thus, the testimony which the jury asked to have read to them was absolutely crucial to their determination of appellant’s guilt or innocence.
This was not a case where, from a mass of dimly remembered data, the jury desired to cull and spotlight a small bit of fact. The entirety of the evidence presented against appellant, while presenting problems in terms of evaluation, was short: the testimony of only three witnesses. Reading the transcript of the testimony of two of these witnesses would not necessarily emphasize it or preclude consideration by the jury of the other testimony. In these circumstances, it must be assumed that the jury asked for a reading of this testimony because it was in doubt or in disagreement upon its proper evaluation.
United States v. Jackson, 257 F.2d 41 (3d Cir. 1958), is directly on point. The issue presented in Jackson was entrapment. The jury asked the court whether or not an informer involved with the defendant was a Government employee. The court told the jury that it was unable to remember whether or not the informer was a Government employee and directed them to return to the jury room for further deliberations without having read any of the testimony to the jury. Attorney for the defendant requested that the pertinent portion of the testimony be read to the jury. But before any action was taken the jury returned a guilty verdict.
This court noted that “[T]he point of the jury’s question was highly relevant.” It held that “in this particular situation we think the defendant was entitled to have the jury informed as a matter of right.” id., at 43.
The request by the jury for a reading of the testimony in the case sub judice is, in fact, even more compelling than in Jackson. In both cases, the evidence on which the jury wanted guidance was crucial to its verdict. In the case sub judice, however, the evidence was identification evidence. The dangers inherent in such testimony have many times been commented upon. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Courts must scrutinize this type of evidence especially carefully; juries must do the same.
Appellee argues that in Jackson the jury asked a question, and not explicitly for a reading of the transcript. This is a distinction of form, not substance. By asking for a reading of the transcript, the jury in the instant case merely showed that they were attentive and remembered the case well enough to know which parts of the testimony would be relevant to an implied question. That question was whether Weber’s and Stoothoff’s identification of Rabb was convincing beyond a reasonable doubt.
It is in this light that the length of the testimony which the jury was asked to have read must be considered. Although we have no evidence before us as to the amount of time required to read approximately forty pages of testimony, the court takes judicial notice that in normal circumstances, the reading would have taken considerably less than an hour. This is not such a delay, which could be held, per se, unreasonable.
The decision we reach is supported by the Standards Relating to Trial by Jury (ABA Project on Minimum Standards of Criminal Justice), § 5.2 and Commentary at 134-38 (Approved Draft 1968):
5.2 Jury request to review evidence, (a) If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the court, after notice to the prosecutor and counsel for the defense, shall have the requested parts of the testimony read to the jury and shall permit the jury to reexamine the requested materials admitted into evidence.
One final comment is in order. Not only did the trial court refuse to have the testimony read to the jury, but it also gave the jury its own summary of the testimony. This technique raises the possibility that the jury may be given an erroneous view of the testimony, and is therefore much less desirable than having the actual transcript read. The American Bar Association Minimum Standards of Criminal Justice specifically rejected this alternative for the reason we have stated. See Comment to Section 5.2(a), Standards, supra. Since the testimony requested by the jury went to the very heart of the case, could not have lead to an unjust emphasis on this testimony to the exclusion of other relevant testimony, and was not unduly long, we hold that it was error for the district court to deny the jury’s request.
The judgment of the district court will be reversed and a new trial ordered.
. The comment on Section 5.2(a) discloses that it was intended to have the judge’s discretion in this situation construed narrowly:
“The thrust of the second sentence of section 5.2(a) is that while the court need not grant every request received from the jury., its, discretion to deny jury review of evidence is strictly limited. The justification for this approach is well expressed in State v. Wolf, 44 N.J. 176, 185, 207 A.2d 670, 675 (1965):
“ ‘When a jury retires to consider their verdict, their discussion may produce disagreement or doubt or failure of definite recollection as to what a particular witness said in the course of his testimony. If they request enlightenment on the subject through the reading of his testimony, . . . the request should be granted. The true administration of justice calls for such action. When there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial to anyone to have that doubt removed by a rehearing of his testimony. There is no need to be chary for fear of giving undue prominence to the testimony of the witness. If ... a jury is to be considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense enough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreement.’ ”
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_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.
BOSTON & M. R. R. v. CABANA.
No. 4052.
Circuit Court of Appeals, First Circuit.
March 23, 1945.
Writ of Certiorari Denied June 4, 1945.
See 65 S.Ct. 1414.
Francis P. Garland and Hurlburt, Jones, Hall & Bickford, all of Boston, Mass., for appellant.
Edward S. Farmer and Brenda M. Dissel, both of Boston, Mass., for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
This action was brought by Edward L. Cabana against the Boston and Maine Railroad to recover damages for injuries sustained while employed as a machinist’s helper under the Federal Employers’ Liability Act of 1908 as amended, 35 Stat. 65, 45 U.S.C.A. §§ 51-60.
The complaint alleges that on the night of August 17, 1943, the plaintiff while at work in the defendant’s roundhouse was struck and injured by a locomotive backing into the roundhouse. The first count charges the defendant with negligently failing to keep the roundhouse sufficiently lighted in consequence of which the accident occurred. The second count alleges that the accident occurred in consequence of negligence on the part of the hostler backing the locomotive into the roundhouse.
On the date of the accident, the plaintiff had been working for the defendant about six months. On that day he went to work about two P. M. and was assisting a machinist named Guess in work on a locomotive on the rails of Pit 48 in the roundhouse. They were laying out shoes and wedges so that the driving box and wheels would be in alignment to the cylinders with the piston. Pit 48 is about 100 feet long; the locomotive was about 72 feet long and was headed into the roundhouse, its front end 10 to 15 feet from the front of the pit. Sometime during the evening Guess asked for another machinist to help them in making certain adjustments which required three persons. While waiting for him they worked on the locomotive, mostly “puttering around”. About 8:55 P. M. they were on the right side of the locomotive near the front wheels, and Guess ordered the plaintiff to go around the engine and be in position to hold the “tran” on the left side upon the arrival of the second machinist who was expected at any moment. The plaintiff could have gone around in front of the engine, but instead he elected to walk down the right side of the pit to a plank walk across the rails near the doors ait the rear opening into the yard. As he was crossing the walkway he was struck by the tender of another locomotive backing into Pit 48 from the turntable about 96 feet away. The plaintiff was able to regain his feet but was unable to stand and immediately collapsed. He was found about eight feet from the doors on the left side of Pit 48.
The plaintiff testified that there was no light on the tender and locomotive which struck him, that he heard no signal or bell, that there were no lights at all at the rear of Pit 48 and that the only light he saw functioning was at the front of the pit. At the time of the accident this pit had 14 lighting fixtures, 7 on each side. There was evidence that several of these fixtures were out of order and in a defective condition, that the management had been advised of this and had promised to take corrective steps, and that it had failed to take-any effective measures by August 17. From all the evidence offered at the' trial the jury could reasonably infer that the area in which the accident occurred, both in and outside the engine house, was pitch dark.
At the close of all the evidence the defendant filed a motion for a directed verdict. The motion was denied and the case submitted to the jury. On the first count of the complaint the jury returned a verdict for the plaintiff; on the second count it returned a verdict for the defendant. From the judgment for the plaintiff on count one, the defendant has appealed on the ground that the lower court should have granted its motion for a directed verdict.
Before this court the defendant relies upon the finding of the jury with reference to the second count in the complaint that there was no negligence in the operation of the locomotive which struck the plaintiff and the dim-out regulations in force at the time of the accident, and makes two contentions: first, that the defendant was guilty of no breach of duty at the time and place of injury so far as adequate lighting is concerned; and second, that the alleged insufficiency of lighting was not the proximate cause of the plaintiff’s injuries.
The defendant- contends that it was under no duty to light the area near the door at the back of the engine house where the plaintiff’s work did not require him to go. Such an- argument may prove too much since if the plaintiff had been working near the rear wheels the short route to the other side would have been the one he actually followed. On the facts here, however, he took the longer way around, and the reasonableness of that is for the jury. At the most it has to do with contributory negligence on his part, and under the Act contributory negligence is not a defense and goes merely to the mitigation of damages.
To recover under the Federal' Employers’ Liability Act the plaintiff must prove that the defendant was negligent and that such negligence was the proximate cause in whole or in pant of the accident. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. “It is not the function of a court to search the record for Conflicting circumstantial evidence in order to take the case away from the jury on a theory .that the proof gives equal support to inconsistent and uncertain” inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very es-sense of this function is .to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * That conclusion, whether it relates .to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P. U. Ry. Co., supra, 321 U.S. at page 35, 64 S.Ct. at page 412, 88 L.Ed. 520. The scope of our review, therefore, is limited to the inquiry whether the plaintiff’s allegation of negligence is supported by any substantial evidence and whether the jury could reasonably infer that such negligence was the proximate cause of the accident in question.
There is substantial evidence which would warrant the jury’s finding that the ■defendant negligently failed to maintain the lighting system in that area of the engine house with which we are concerned. It appears that each side of Pit 48 was supplied with fixtures for 8 lights. When the dim-out regulations went into effect the two fixture.» nearest the doors at the rear were disconnected and the wattage of others was reduced in compliance with the dim-out regulations. As a result there was no light at all at the doors to Pit 48. Floodlights used to light the area between the engine house and the turntable were also extinguished. Apart from the efforts ■of the defendant to comply with war-time regulations, however, the jury could infer from the testimony that with the exception oí a few lights at the head of Pit 48, most of the 14 fixtures were not in working ■order owing to corrosion of the sockets or burned out bulbs. There was testimony to the effect that this condition had lasted for some time and had been the source of numerous complaints, that it had been called to the attention of the defendant by the Grievance Committee of the Union, and that the defendant had promised to take steps to remedy the situation but had taken no effective action by August 17.
The defendant relies upon its compliance with the dim-out regulations to explain the elimination of the yard floodlights and those lights at the engine house doors. We are not completely satisfied that the regulations required the elimination of all outside lighting. Section 7, relating to outside industrial lights, provides that all lights in railroad yards are to be permanently shielded so that all light is projected at least 30 degrees below the horizontal, and that all lights which cannot be so controlled are to be extinguished. Nothing in the record indicates that any attempt was made to comply with the regulations outside in the yard in any way other than by extinguishing lights. So far as the inside lights are concerned, with the exception of the lights right at the doors, compliaufce took the form of reducing wattage. There was substantial evidence as to the failure of these lights to function, from which the jury could infer that the defendant, apart from its efforts .to comply with the dim-out regulations, was negligent in the maintenance o f such lighting facilities as were permissible under the regulations.
The defendant’s second point is that there was no causal connection between the condition of the lighting and the plaintiff’s injuries. It contends that the hostler operating the locomotive backing into Pit 48 could never have seen the plaintiff because he sat on the engineer’s seat and was looking back out of the side of the cab opposite to the side from which the plaintiff was approaching, and that he could see neither around nor over the tender which effectively confined his outlook to the left side of Pit 48.
The evidence shows that the hostler was looking hack as his locomotive made its way into Pit 48 and that he saw a body moving and the figure of a man standing up. As we view the case, however, it is not necessary to decide the question raised by the appellant whether or not it was physically possible for the hostler to see around or over the tender and to decide if the jury could reasonably infer that had there been adequate lighting, the hostler would have been able to see the plaintiff in time to avoid the accident. Whether or not he was in a position to see the plaintiff, the evidence clearly warrants a finding that if there had been adequate lighting the plaintiff would have been able to see the backing engine in time to get out of the way. As was pointed out only the other day by the Supreme Court in Tiller v. Atlantic Coast Line R. R. Co., 1945, 323 U.S. 574, 65 S.Ct. 421, 423, “the diffused rays of a strong headlight, even ¡though directly obscured from the front, might easily have spread themselves so that one standing within three car-lengths of the approaching. locomotive would have been given warning of its presence, or at least so the jury might have found. The backward movement of cars on a dark night in an unlit yard was potentially perilous to .those compelled to work in the yard. Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 33, 64 S.Ct. 409, 411 [88 L.Ed. 520].” The jury in bringing in a verdict for the defendant on count 2 and finding for the plaintiff on .the first count decided that failure to keep the premises properly lighted was the proximate cause of the injury.
The judgment of the District Court is affirmed, with costs to the appellee.
Executive Order No. 55 Effective June 8, 1943.
“Section 7. Outdoor Industrial Lights
All lights used for out-of-door manufacturing, repair work, shipbuilding, necessary handling, or storage of raw or finished materials, for any type of construction work, in railroad yards or for raising of crops and poultry shall be permanently shielded so that all light is projected at least 30° below the horizontal. Lights which cannot be so controlled shall be extinguished.”
’Blip hostler testified in part on cross-examination as follows:
“X-Q. 300. Yon were asked, ‘Did you see anyone around anywhere?’ and you said, did you not, ‘Not before I hit him’. ‘Q. Did you see him after you hit him? A. I saw something move and I put the brakes on.’ That is so? A. That is right.”
“X-Q. 307. ‘Did he get up himself?’ And your answer was ‘Yes’. And that is the fact, isn’t it? A. That is the fact.”
“X-Q. 108. And yon were asked: ‘Did j'ou see him standing up?’ and your answer was ‘Yes. afterwards’. A. That is right.”
“X-Q. 309. And that is the fact?”
“Mr. Garland. Who is testifying?”
“Mr. Farmer. Well, I think my procedure is regular.”
“X-Q. 110. You were asked, ‘llow was the lighting?’ and your answer was, ‘There was no light’. A. Yes.”
“X-Q. 311. And that is in conformity with the facts? A. Yes.”
“X-Q. 112. And you were asked ‘It was pretty dark’, and your answer was, ‘Yes’. A. Yes.”
“X-Q. 113. And that is the fact, isn’t it? A. That is the fact.”
“X-Q. 114. And then you were asked, ‘Do you think it was so dark that you could not have seen a man sitting in the cab?’ and your answer, T am very sure if I had seen him I would have stopped’. A. That is right, but he would not be in the cab.”
“X-Q. 115. You were asked, ‘You were sitting on the seat’ and your answer is, “Yes, on the seat’, and that is the fact? A. Yes.”
“X-Q. 116. And you were asked, ‘With your head out looking back?’ and your answer was ‘Yes’? A. Yes.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_genapel2 | H | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task 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.
FREW et al. v. BOWERS, Collector of Internal Revenue.
(Circuit Court of Appeals, Second Circuit.
June 1, 1926.)
No. 284.
1. Internal revenue <§=38.
The tax imposed by Revenue Act 1921, §§ 401, 402 (Comp. St. Ann. Supp. 1923, §jj 6336%b, 6336%e), is an excise on the right or privilege of transmitting property from a decedent, and not on the right or privilege of receiving it.
2. Constitutional law <§=3188.
Mere retroactivity of a national taxing statute does not produce unconstitutionality.
3. Internal revenue <§=38 — Statute taxing as estate of decedent property with respect to which decedent has created trust, in contemplation of or to take effect at or after death, held applicable to decedent who utilized existing trust, instead of creating one (Revenue Act 1921, §§ 401, 402 [Comp. St. Ann. Supp. 1923, §§ 633634b, 633634c]).
Revenue Act 1921, §§ 401, 402 (Comp. St. Ann. Supp. 1923, §§ 633634b, 633634c), providing for excise tax on privilege of transmitting property of a decedent, and providing that gross estate of decedent shall be determined by including therein the value of any property with respect to which decedent has at any time created a trust in contemplation of or intended to take effect in possession or enjoyment at or after his death, held to apply to decedent who, though he did not strictly create a trust, utilized one already created by gift to trustees. ,
4. Infernal revenue <§=38 — Property conveyed by decedent,to trustees of deceased’s wife’s estate 12 years before his death, together with accumulated earnings, held not properly included as part of decedent’s gross estate, under subsequent revenue act (Revenue Act 192!, §§ 401, 402 [Comp. St. Ann. Supp. 1923, §§ 633634b, 633634c]).
Where decedent, 12 years before his death, transferred securities then valued at $200,000 to trustees of his deceased wife’s estate, by the use of which the trustees at time of decedent’s death had accumulated securities worth $500,-OOO, held, such $500,000 was not to be included as part of decedent’s gross estate, taxable under Revenue Act 1921, §§ 401, 402 (Comp. St. Ann. Supp. 1923, §§ 6336%b, 6336% c) since such construction would render section 402 unconstitutional.
5. Deeds <®=3l — Property <§=36 — Wills <§=s2.
The right to own property, to grant it, and to dispose of it by will is within control of states, not of nation.
6. Internal revenue <§=>2 — Revenue act, if construed as taxing decedent’s estate on included value of property irrevocably placed in trust before enactment of statute, with accumulations at decedent’s death, held unconstitutional (Revenue Act 1921, § 402 [Comp. St. Ann. Supp. 1923, § 633634c]).
Revenue Act 1921, § 402 (Comp. St. Ann. Supp. 1923, § 6336%c), if it authorizes, in fixing taxable value of decedent’s estate, inclusion of value of property irrevocably placed in trust before enactment of statute and 12 years before decedent’s death, together with its accumulations at decedent’s death, is unconstitutional, either as arbitrary and capricious excise tax, measured by estate of another than decedent, or as unapportioned direct tax.
Hand, Circuit Judge, dissenting in part.
In Error to the District Court of the United States for the Southern District of New York.
Action by Walter E. Frew and others, executors of the will of William A. Nash, deceased, against Frank K. Bowers, as Collector of Internal Revenue. From a judgment for defendant, plaintiffs bring error.
Reversed.
The action is to recover taxes admittedly paid under duress. Plaintiffs are executors of William A. Nash, a citizen of New York, where his will was duly admitted to probate in 1922. His wife, Alice J. Nash, died many years earlier, and her will was probated in New York in 1904. Mr. Nash was an executor and trustee under this will.
The trust created by Mrs. Nash’s will directed the income of the trust thereby created should be paid to Mr. Nash for life, with remainder in trust for life as to one part thereof for a son. This part of the estate vests upon the son’s death in his children or more remote descendants. The remaining part of the trust was similarly limited to and in a daughter and her children or more remote descendants.
In 1910, several years after the death of Mrs. Nash, and 12 years before his own death, Mr. Nash conveyed and transferred to the trustees of his wife’s estate, and for the purposes of that trust, securities then valued at $200,000. This personal property was treated as a portion of the trust created by Mrs. Nash; it was administered and accounted for by her trustees, and in judicial pro-' eeedings instituted for the settlement of their account in the proper court of the state of New York it was held and determined that the act of Mr. Nash in 1910 amounted to an absolute ánd irrevocable gift of said securities to said trustees, and that thereafter said securities and the proceeds and reinvestments thereof constituted an integral and indivisible part of the trust estate created by Mrs. Nash’s will.
By sale and reinvestment the capital fund so given to his wife’s trust by Mr. Nash in 1910 had produced in 1922 securities of the value of upwards of $500,000, which securities were at Mr. Nash’s death and stiff are in the hands of the trustees under Mrs- Nash’s will. When Mr. Nash died, in 1922, the statute providing for an estate tax upon his property was the Revenue Act of 1921 (Comp. St. Ann. Supp. 1923, §§ '6336%a-6336 %Z), of which the pertinent portions are as follows:
“Sec. 401. That, in lieu of the tax imposed by title IY of the Revenue Act of 1918, a tax equal to the sum of the following percentages of the value of the net estate [determined as provided in section 403] is hereby imposed upon the transfer of the net estate of every decedent dying after the passage of this Act, whether a resident or nonresident of the United States. * * * ” (The “percentages” here follow.) Comp.' St. Ann. Supp. 1923, § 6336%b.
“See. 402. That the value of the gross estate of.the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated.
» 3. *
“(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this act), except in case of a bona fide sale for a fair- consideration in money or money’s worth.” Comp. St. Ann. Supp. 1923, § 6336%c.
It is admitted that the transfer, gift, or conveyance made by Mr. Nash in 1910 was not “in contemplation of death”; but, because said transfer was “intended to take effect in possession or enjoyment at or after his death,” the Treasury laid a tax upon the estate of Mr. Nash in respect of the $500,000, which in 1922 represented the value "of the $200,000 worth of securities which he had transferred in 1910. After due proceedings these plaintiffs, as executors of Mr. Nash, paid the tax and brought this action to recover.
The facts above summarized were set forth at length in the complaint. Defendant moved to dismiss on the ground that the facts alleged showed no cause of action. The motion prevailed, and to a judgment for defendant, plaintiffs sued out this writ.
Kellogg & Rose, of New York City (Abram J. Rose, Alfred C. Pette, and Philip M. Brett, all of New York City, on the brief), for plaintiffs in error.
Emory R. Buckner, U. S.' Atty., of New York ‘City (Sherwood E. Hall, Asst. U. S. Atty., of New York City, of counsel), for defendant in error.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HOUGH, Circuit Judge
(after stating the facts as above). Consideration of the problem presented seems to require some definition of the nature of the tax imposed. To call it, as it is officially called, an estate tax, does not advance the matter, for the phrase merely indicates the incidence of the charge, not its nature or species.
We think that authority, rather than speculation on the reason of things, must control definition, and we premise by holding that this tax, like any similar burden imposed by the nation rather than a state, is an excise upon the right or privilege (it matters not which word is preferred) of transmitting property from á decedent to those chosen by will or selected by the law of descent. It is not a tax upon the right or privilege of receiving that which is given by will or conferred by law; it is upon the succession from the deceased owner. That which is taxed is the right or privilege of transmitting property, and, if there be “no property to transmit, there would be nothing upon which the tax levied on the occasion of death could be computed.” Knowlton v. Moore, 178 U. S. 41, 20 S. Ct. 747, 44 L. Ed. 969. And see the cases collated. in Randolph v. Craig (D. C.) 267 F. 993.
Furthermore these citations prove it as law that such taxes are and have been “almost from the beginning of our national life treated as duties and not as direct taxes.” Knowlton v. Moore, supra. If the tax were direct, it would admittedly require apportionment under the Constitution, for which the statute makes no provision.
We next inquire as to'the nature, or at least as to the presently material attributes, of the property whose transmission gives rise to this indirect tax — this duty or excise. It is and must be the property of the decedent whose estate bears the incidence of tax. No estate, no tax, said White, C. J., in substance, in Knowlton v. Moore, supra; and it is laid on the transfer of “the net estate of every decedent dying after the passage of this act.” Such’ are the statutory words; so what is taxable in this instance is the property lately of Mr. Nash, and not the property of any one else.
We now consider the extent and intent of the applicable and above-cited statute. Transfers “in contemplation of death” are not relevant, and this is admitted, as it must be, whether regard be had to the language of the act, or the facts pleaded and undenied in respect of the conduct of Mr. Nash in 1910, when he was a man vigorously and successfully oeeupying a laborious and important place in the financial world, a position he continued acceptably to fill almost to the day of his death.
• The statutory declaration is (speaking in terms of this ease) that Mr. Nash’s “gross estate” shall be determined by “including” any “interest therein” — i. e., any interest in “all property * * * ' wherever situated” — of which Mr. Nash “at any time made a transfer, or * * * created a trust * * * intended to take effect in possession or enjoyment at or after his death, whether such transfer or trust is made or created before or after the passage of this act.”
Having regard to the recent history of estate tax legislation, as shown by Shwab v. Doyle, 258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454, the report of the same case below in (C. C. A.) 269 F. 321, Coolidge v. Nichols (D. C.) 4 F.(2d) 112, and Girard Trust Co. v. McCaughn (D. C.) 3 E. (2d) 618 (reversed in the Third Circuit, since argument herein, and still unreported), we have no doubt that the intent of the draftsman of the act of 1921, and therefore the intent of the Congress that approved his work, was to coerce, by words too strong to be avoided, the reluctance of courts to give retroactive effect to statutes of exaction, so as to impose on citizens burdens for doing what at the time of doing was unburdened. That reluctance was fully voiced in the Shwab and its allied eases in 258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454. Since mere retroactivity of a national taxing statute confessedly does not produce uneonstitutionality, we are quite unable to see how it can be doubted that the intent of the statute was to reach past transactions irrespective of their antiquity. If Mr.- Nash had been an old Parr, the transfer of 1910 might have taken place in 1810; the legal result would have been the same under this statute.
But the time of creating the trust is not the only matter determinative of the application of the statute; the transfer must be made or the trust created with intent that it “take effect in possession or enjoyment at or after his death” — i. e., after the death of the transferor.
Again, to state the question in terms of this case, there was a “transfer” — i. e., a passing of title — by Mr. Nash; but did he “create” a trust? In a strict legal sense he certainly did not, Mrs. Nash did that; but for the purposes of this statute we believe there is no difference between creating a trust and utilizing one already created, the terms of which suit the wishes of the transferor. So we regard the statute as intended to apply to Mr. Nash as fully as though he had executed a deed of trust inter vivos to the same legal effect as Mrs. Nash’s will.
But, further, what is meant by the phrase “take effect in possession or enjoyment at or after” the death of the trust creator? The natural inclination of every lawyer is to recognize that “take effect” is not a phrase of art, to search for some artistic equivalent, and find it in the word “vest.” But if, as the result of a passage of title, the passing estate is vested, whether in fee, for life, in remainder, or in reversion, even though subject to divestment by subsequent event, then the transfer is complete, and so is the “possession or enjoyment,” for one “possesses and enjoys” a reversion as thoroughly as he does a fee, even though most men prefer a fee to a reversion.
But if the transfer of an estate results in the immediate vesting thereof, and of each and every part of the same, the transaction is complete, and the grantor or transferor has no “interest” left therein; wherefore on his death there can be found no such “interest” to include in his gross estate.
On the interpretation of these words we think the cases hopelessly at variance. On comparing the Girard Trust Co. Case, Coolidge v. Nichols, supra, Shukert v. Allen (C. C. A.) 6 F.(2d) 551, Cleveland, etc., Co. v. Routzahn (D. C.) 7 F.(2d) 483, and Erick v. Lewellyn (D. C.) 298 E. 803, there will be seen a diversity of opinion incapable of reconciliation. One man may regard the words of the act as a conveyancer would, i. e., read them like the carrying words in a deed; while another may look only to what Congress is supposed to have wanted, i. e., to collect the largest quantum of tax and so read “possession” and particularly “enjoyment” as meaning the time when remaindermen and/or reversioners will’obtain the usufruct of the property.
The ruling decisions seem to -us to go no further than to definitely hold that a trust creation, wherein the possession or enjoyment in the usufruct sense is deferred until “at or after” the death of the settlor, is a “completed” transaction, a holding consistent only with the more technical and legal interpretation of the statutory words. Shwab v. Doyle, .258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454; Union Trust Co. v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753; Levy v. Wardell, 258 U. S. 542, 42 S. Ct. 395, 66 L. Ed. 758. But it is observable that this was said only as preparatory to a holding that the aet of 1916 (39 Stat. 778 [Comp. St. §§ 6336%a-6336%m]), in laying taxes in respect of transfers made at “any time,” did not mean (as to completed transactions) any time prior to the passage of the act. The point that, if the transaction was “complete,” there could be no “interest” left in the estate of the transferor, was certainly not decided and apparently not argued.
Before expressing opinion on this point, we shall consider the ownership and nature of the property in respect of which this particular tax is laid. This excise is on the transfer by his will of the estate of Mr. Nash; if he had no estate, or one less than the statutory exemption, there would be no tax.
It is not on the transfer of 1910; and at that date there was no tax burden of any kind upon what Mr. Nash then did. It is not laid because Mr. Nash died owning or having any testamentary power over what he parted with in 1910. The statute does not pretend to declare ownership, and it could not if it would; for the right to own property, grant it, and dispose of it by will is a matter for the states, and not the nation, and by the law of New York Mr. Nash did not own, and could neither grant nor bequeath, what was owned by the trustees of Mrs. Nash. He did possess and enjoy-a life interest in the net income, but that is not relevant to this tax.
Furthermore, Mr. Nash never did own more than $200,000 worth of the property used in computing this tax. By financial operations successfully carried on by Mrs. Nash’s trustees, they acquired $500,000 worth of securities, by using the capital given them. How, in any reasonable usage of the word, Mr. Nash can be said to have an “interest” in 1922 in what he never owned, because he “transferred” in 1910 the capital so skillfully increased by others, we are quite unable to perceive.
It is suggested that what was given in 1910 was a seed from which has grown a lusty plant, and the giver bears the same relation to the plant that he did to the seed. The analogy would be attractive, had the gift been a tract of land, which increased in value; but it fails completely with personal property, that changes in kind and nature by sale and new purchase.
The $500,000 worth of personalty under consideration was no part of the estate gross or net of Mr. Nash, and it is noticeable that the statute does not attempt to say that it does so belong. At the utmost, and under the second above stated construction of the word “interest,” it only directs that the “value” of the interest transferred shall be included in determining the tax on the estate of'which the decedent died seized or possessed.
Thus it is seen that what this statute was held to mean by the decision below is this: An excise tax on the transfer of property occurring.by reason of the death of A., payable only out of A.’s estate, and graduated by the size of that estate, is augmented by treating as part of A.’s property the property of another, three-fifths of which Mr. Nash never owned, and two-fifths of which he gave to that other 12 years before his death.
Thus we must first decide whether, within the meaning of the statute, Mr. Nash at the moment of his death had any interest, within the meaning of the act; we incline to hold that the applicable words should be treated technically, and that therefore there was no interest left from or arising out of the gift computed in 1910. We agree with the reasoning of Brewster, J., in Coolidge v. Nichols, supra, while feeling that nothing ultimate will be reached on this subject, until determination of the certiorari granted in Shukert v. Allen, supra.
But, if the technical construction is wrong, then we must face the question whether it is within the power of Congress to do what has been done; i. e., use the.property of A. as a measure for the tax to be laid upon B. Thus stated^ it would seem impossible to support the tax; attack must be on the form of statement. We have at great length examined the assemblage of phenomena that make up this case, in order to ascertain what they amount to; and we think the foregoing an accurate statement of what the tax at bar really is.
If that description be accepted, while there is no classification of taxpayers, the tax itself is “arbitrary and capricious.” Barclay v. Edwards, 267 U. S. 442, 450, 45 S. Ct. 135, 348 (69 L. Ed. 703). Further, a tax on a transfer by A., but measured by anything other than the estate of A., may be a duty or excise in form, but it is a palpable effort to tax something other than the transfer. In this case the effort is to tax in 1922 in respe.et of something untaxable in 1910. Cf. Lewellyn v. Frick, 268 U. S. 238 at 251, 45 S. Ct. 487, 69 L. Ed. 934.
If it be said that Congress might have taxed the 1910 transfer, and therefore can tax it even in 1922, the answer is that nothing of the kind has been attempted. There is no tax now laid on the transfer of 1910, nor the property transferred. Could Congress in 1922 have laid a tax on Mr. Nash because he gave away $200,000 in 1910? If that be assumed as possible, it is not possible that the tax so laid, and computed on the gift, its credits and gains, could ever be an excise on the transfer.
But if the tax be laid as it actually has been, and called an excise on the transfer of something else, the name is merely false, there is no excise, and the exaction falls into the category of unapportioned direct taxes. We think this an effort to use a constitutional power as a hook on which to hang a cloak that conceals unconstitutional action. There is no real difference between disguising this direct tax under the name of a duty, and laying a tax in order generally to regulate some subject taxable, but not otherwise subject to national regulation. The real purpose is dealt with, notwithstanding the cloak. The Child Labor Cases, 259 U. S. 20, 42 S. Ct. 449, 66 L. Ed. 817, is the leading example.
It follows that we think there was no “interest” shown in Mr. Nash, justifying the tax laid; but, if the statute required the tax as laid, then the exaction was arbitrary and unconstitutional.
Judgment reversed, with costs.
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_numresp | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WHITAKER-GLESSNER CO. v. OHIO SAVINGS BANK & TRUST CO. et al.
Circuit Court of Appeals, Sixth Circuit.
November 18, 1927.
No. 4945.
1. Fixtures —Personalty becomes fixture on annexation to realty, application to use to ■ which realty is appropriated, and intention by annexing party to permanently attach it to freehold.
Personalty becomes a fixture on the concurrence of its annexation to the realty or something appurtenant thereto, its application to the use or purpose to which the realty is appropriated, and an intention on the part of the party annexing it to make it a permanent accession to the freehold.
2. Fixtures <®=3>4 — Intention of party annexing chattel to realty, removable without injury to either, is to be determined from manner of annexation, uses and circumstances.
Where a chattel may be removed without injury to it or the realty, the manner of its annexation and other circumstances and facts, including its possible uses, are to be considered in determining the intention of the party annexing it.
3. Fixtures <©=oI8(5)— Machinery in canning factory, bolted to floor, but removable without injury to machinery or realty, held fixture as between company and mortgagee.
Machinery bolted to the floors of a canning factory, both realty and machinery being owned and used by a canning company for the sole purposes of the business, though removable without injury to itself or the realty, held a fixture as between the company and a mortgagee.
Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; Benson W. Hough, Judge.
Suit in equity by the Ohio Savings Bank & Trust Company, Trustee, and others, against the Whitaker-Glessnor Company. Decree for complainants, and defendant appeals.
Affirmed.
Geo. W. Ritter, of Toledo, Ohio (Wright Hugus, of Wheeling, W. Va., and John S. Brumback, of Toledo, Ohio, on the brief), for appellant.
John F. Wilson, of Columbus, Ohio, and John E. Morley, of Cleveland, Ohio (Wilson & Rector, of Columbus, Ohio, on the brief), for appellees.
Before DENISON and MOORMAN, Circuit Judges.
MOORMAN, Circuit Judge.
Suits were brought to foreclose mortgages on canning plants in Ohio, Michigan, Illinois, Indiana, and Kentucky. The mortgages purported to cover all property, real and personal, used in connection with the plants. The lower court held that they were effective in Ohio, Michigan, and Illinois only as real estate mortgages; but decreed that certain parts of the machinery in the plants in those states were such fixtures as wore subject to the mortgages. Appellant contends' that these parts were personalty. They were attached to.the buildings by bolts or screws and connected together; but they could he separately removed without injury to themselves, the building, or any other part. It sometimes happened that one part was replaced by another, depending upon the vegetable being canned.
In Ohio personalty becomes a fixture, under Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634, cited with approval in Coleman v. Manufacturing Co., 38 Mich. 30, upon the concurrence of its annexation to the realty or something appurtenant thereto, its application to the use or purpose to which the realty is appropriated, and an intention on the part of the party, annexing it to make it a permanent accession to the freehold. It is also held in Ohio, as generally elsewhere, that, where the chattel may be removed without injury to it or the realty, the manner of its annexation and other circumstances and facts, including its possible uses, a,re to be considered in determining the intention of the party annexing it. We have not been referred to any decision of the courts of Michigan or Illinois which militates against these rules; and, despite the dictum of Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899, we find nothing different therefrom in Hill v. National Bank, 97 U. S. 450, 24 L. Ed. 1051, Firth Co. v. Trust Co. (C. C. A.) 122 F. 569, and In re Russell Falls Co. (D. C.) 249 F. 260, which counsel for appellant say are inapplicable, because decided under the “Massachusetts rule.”
The annexation being shown, each case, as to the other conditions necessary to the conversion, must obviously turn on its own factg. The case here is between mortgagees and one standing in the place of the mortgagor, in which ease the law looks more favorably upon conversion than in a case between landlord and tenant, or life tenant and remainderman. However, in such case, the mortgage itself may be evidence of the intention of the mortgagor in affixing the chattel. Appellant contends that these mortgages disclose an intention not to make the machinery a fixture.
There are mortgages in which a specific reference to machinery or chattels, following the description of the real estate, would indicate that the mortgagor intended to treat the two as different classes of property; and there would be' reason, under Fortman v. Goepper, 14 Ohio St. 559, for the inference here, did not the mortgages also specify buildings, dwellings, structures, and fixtures included in the theretofore described real estate. This further specification shows that no such inference can be based on the cumulative description. Nor is it to be drawn from the provision requiring that the mortgages, be filed both as real estate and chattel mortgages, for both kinds of property were embraced in the mortgages, it being the intention of the parties to incumber both, which was a sufficient reason for the provision requiring the two recordations.
The authority given the mortgagor to sell a part of the apparatus, machinery, equipment, or material of a movable or consumable nature upon substituting therefor other property of equal value, and the further provision, probably applying only to the real property, authorizing the company to sell “any other of its property upon procuring a release of the lien from the trustees,” do not, in our opinion, throw any light on the intention of the mortgagor in affixing the machinery to the buildings.
Although some of the machinery could be and occasionally was removed to meet the exigencies of the business, all of it that the lower court held to be fixtures was annexed to the realty and was a part of the fixed equipment of the plants. The fact that it was carried on the books of the mortgagor separately from the real estate is evidence of lack of intention to make it a fixture. On the other hand, the mortgagor was engaged in tbe canning business and no other; it owned the buildings, and all the land on which they were located, except the plant in Kentucky; it had acquired these properties for the sole purpose of establishing canning plants; and the buildings were thereafter constructed, or reconstructed, so that the machinery could be placed in them and used for the purpose for which they were acquired. The machinery was in the plants at the time the mortgages were given, and was being devoted to the use to which the real estate was appropriated. We think it was a part of the realty. Pflueger v. Lewis Foundry & Machine Co. (C. C. A.) 134 F. 28.
The judgment is affirmed.
For example: After describing the several tracts of land by metes and bounds, the mortgages include: “All the buildings, dwellings, structures, and improvements constructed and to be constructed on said lands hereby conveyed, and all engines, boilers, machinery, belting, shafting, steam and beating apparatus', and all fixtures, implements, and apparatus used or useful in carrying on the company’s business, together with all the appurtenances and appliances connected with and appurtenant thereto, and any and all increase of or to any of the above denominated items, whether by replacement, repairing, or adding to the aggregate thereof of new appliances or items as above denominated.” They provide that upon their delivery they shall be filed for record as real estate and also as chattel mortgages, and that the mortgagor from time to time may sell or otherwise dispose of such “apparatus, machinery, equipment, or material of a movable or a consumable nature,” and acquire other property of equal or greater value, so as to keep the security unimpaired, and all the property so acquired shall become “subject to the operation and lien of this mortgage.”
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
sc_casesource | 028 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT et al. v. DILLINGHAM CONSTRUCTION, N. A., INC., et al.
No. 95-789.
Argued November 5, 1996
Decided February 18, 1997
John M. Rea argued the cause for petitioners. With him on the briefs were Vanessa L. Holton, Fred D. Lonsdale, Sarah Cohen, and H. Thomas Cadell, Jr.
James A. Feldman argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel I. Spiller, and Edward D. Sieger. a brief for
Richard N. Hill argued the cause and filed a brief for respondents.
Briefs of amici curiae urging reversal were filed for the State of Washington et al. by Christine 0. Gregoire, Attorney General of Washington, and Lynn D. W. Hendrickson and Jeff B. Kray, Assistant Attorneys General, Dennis C. Vacco, Attorney General of New York, Victoria A. Graffeo, Solicitor General, and Daniel F. De Vita and M. Patricia Smith, Assistant Attorneys General, Winston Bryant, Attorney General of Arkansas, M. Jane Brady, Attorney General of Delaware, Charles F. C. Ruff, Corporation Counsel for the District of Columbia, Margery S. Bronster, Attorney General of Hawaii, Andrew Ketterer, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hiíbert H. Humphrey III, Attorney General of Minnesota, Joseph P. Mazurek, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, Deborah T. Poritz, Attorney General of New Jersey, Theodore R. Kulongoski, Attorney General of Oregon, and Thomas W. Corbett, Jr., Attorney General of Pennsylvania; for the American Federation of Labor and Congress of Industrial Organizations et al. by Jonathan P. Hiatt, Laurence J. Cohen, Terry R. Yellig, Laurence Gold, Marsha S. Berzon, and Donald J. Capuano; for the California Association of the Sheet Metal and Air Conditioning Contractors National Association et al. by Robert E. Jesinger; for the Council of State Governments et al. by Richard Ruda and Lee Fennell; and for the National Electrical Contractors Association, Inc., by Gary L. Lieber. for Associated Build-
tors Briefs of amici curiae urging affirmance were filed for Associated Builders and Contractors, Inc., et al. by Mark R. Thierman; and for Signatory Members of the Coalition to Preserve ERISA Preemption by Maurice Baskin.
Baskin. Briefs of amici curiae were filed for the American Association of Retired Persons et al. by Mary Ellen Signorille, Cathy Ventrell-Monsees, Melvin Radowitz, and Daniel Feinberg; for the Associated General Contractors of America, San Diego Chapter, Inc., et al. by John G. Roberts, Jr., Michael E. Kennedy, William.G. Jeffery, and David P. Wolds; for the' California Apprenticeship Coordinators Association et al. by James P. Watson; and for the Chamber of Commerce of the United States et al. by Timothy B. Dyk, Daniel H. Bromberg, Stephen A Bokat, Mona C. Zeiberg, Jan S. Amundson, and Quentin Riegel.
Justice Thomas
delivered the opinion of the Court.
The State of California requires a contractor on a public works project to pay its workers the prevailing wage in the project’s locale. An exception to this requirement permits a contractor to pay a lower wage to workers participating in an approved apprenticeship program. This case presents the question whether the pre-emption provision of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq., supersedes California’s prevailing wage law to the extent that the law prohibits payment of an apprentice wage to an apprentice trained in an unapproved program. We conclude that California’s law does not “relate to” employee benefit plans, and thus is not pre-empted.
I
A
Since 1931, the Davis-Bacon Act, 46 Stat. 1494, as amended, 40 U. S. C. §§ 276a to 276a-5, has required that the wages paid on federal public works projects equal wages paid in the project’s locale on similar, private construction jobs. California, in 1937, adopted a similar statute, which requires contractors who are awarded public works projects to pay their workers “not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed.” Cal. Lab. Code Ann. § 1771 (West 1989). Under both the Davis-Bacon Act and California’s prevailing wage law, public works contractors may pay less than the prevailing journeyman wage to apprentices in apprenticeship programs that meet standards promulgated under the National Apprenticeship Act, 50 Stat. 664, as amended, 29 U. S. C. §50 (known popularly as the Fitzgerald Act). See 29 CFR § 29.5(b)(5) (1996); Cal. Lab. Code Ann. §1777.5 (West 1989 and Supp. 1997). In most circumstances, California public works contractors are not obliged to employ apprentices, but if they do, the apprentice wage is only permitted for those apprentices in approved programs. is
programs. The federal arbiter of apprenticeship program adequacy is the Bureau of Apprenticeship and Training (BAT), located within the Department of Labor. An apprenticeship program that seeks to provide federal public works contractors with apprentice-wage-eligible apprentices must receive the blessing of either the BAT or a “State Apprenticeship Agency.” 29 CFR §29.3 (1996). Since 1978, California’s state apprenticeship agency, the California Apprenticeship Council (CAC), has been authorized under 29 CFR §29.12 to approve apprenticeship programs for federal purposes. App. 37. California has also charged the CAC with approving apprenticeship programs for purposes of California’s prevailing wage statute. See Cal. Lab. Code Ann. § 3071 (West 1989). Pursuant to the Fitzgerald Act, the United States Secretary of Labor has promulgated apprenticeship program standards. 29 CFR §29.5 (1996). California has adopted its own apprenticeship standards, 8 Cal. Code Regs. §212 (1996), that are “substantively similar” to the federal standards. Southern Cal. Chapter of Associated Builders and Contractors, Inc., Joint Apprenticeship Committee v. California Apprenticeship Council, 4 Cal. 4th 422, 434, 841 P. 2d 1011, 1017 (1992) (Southern Cal. ABC). The CAC uses its own standards whether approving an apprenticeship program for federal or for state purposes.
An apprenticeship program in California may be sponsored by an individual employer, an individual labor union, a group of employers, a group of labor organizations, or by a joint management-labor venture (a so-called joint apprenticeship committee). See Cal. Lab. Code Ann. §3075 (West 1989).
B
In the spring of 1987, respondent Dillingham Construction was awarded a public works contract as the general contractor for the construction of the Sonoma County Main Adult Detention Facility. Dillingham subcontracted electronic installation work to respondent Manuel J. Arceo, doing business as Sound Systems Media.
When Sound Systems Media was awarded the subcontract, it was signatory to a collective-bargaining agreement that provided a wage scale for apprentices, and required Sound Systems Media to contribute to a CAC-approved apprenticeship program, the Northern California Sound and Communications Joint Apprenticeship Training Committee.
In May 1988, after work on the project was underway, the existing union withdrew its representation of Sound Systems Media employees. Two months later, Sound Systems Media entered a new collective-bargaining agreement with a different union. That agreement, like the earlier one, included a scale of wages for apprentices and provided for an affiliation with a joint apprenticeship committee, the Electronic and Communications Systems Joint Apprenticeship Training Committee (Electronic and Communications Systems JATC). Sound Systems Media relied on this new committee for its apprentices, to whom it paid the apprentice wage provided in the collective-bargaining agreement. The Electronic and Communications Systems JATC, however, did not seek CAC approval until August 1989 and did not gain approval until October 1990. That approval was not retroactive.
In March 1989, yet another union filed a complaint against Sound Systems Media with petitioner Division of Apprenticeship Standards of the California Department of Industrial Relations. Petitioner issued a notice of noncompliance to both Dillingham Construction and Sound Systems Media, charging that Sound Systems Media had violated Cal. Lab. Code Ann. § 1771 (West 1989) by paying the apprentice wage, rather than the prevailing journeyman wage, to apprentices from a nonapproved program. The County of Sonoma was ordered to withhold certain moneys from Dillingham Construction for the violation.
Respondents filed suit to prevent petitioners from interfering with payment under the subcontract. Their complaint alleged, inter alia, that ERISA pre-empted enforcement of the prevailing wage law. Respondents argued that the Electronic and Communications Systems JATC was an “employee welfare benefit plan” within the meaning of ERISA §3(1), 29 U.S.C. §1002(1), and that California’s prevailing wage statute “relate[d] to” it, and was therefore superseded by ERISA’s pre-emption provision, § 514(a), 29 U. S. C. § 1144(a). The District Court agreed that the prevailing wage statute “relate[d] to” ERISA plans, but con-eluded that pre-emption was forestalled by ERISA’s saving clause, § 514(d), 29 U. S. C. § 1144(d). Pre-emption of the prevailing wage statute, the District Court determined, would “impair the purposes of the Fitzgerald Act and its regulations within the meaning of ERISA’s savings clause.” Dillingham Constr. N. A., Inc. v. County of Sonoma, 778 F. Supp. 1522, 1530 (ND Cal. 1991).
The Court of Appeals for the Ninth Circuit reversed. 57 F. 3d 712 (1995). Agreeing with the District Court, the Ninth Circuit held that the Electronic and Communications Systems JATC was an employee welfare benefit plan and that §1777.5 “relate[d] to” it. Id., at 718-719. Because California’s prevailing wage statute was not an “enforcement mechanism” of the Fitzgerald Act, however, the Ninth Circuit parted company with the District Court and held that § 1777.5 was not preserved by ERISA’s saving clause. Id., at 721. The decision of the Court of Appeals accorded with that of the Court of Appeals for the Tenth Circuit in National Elevator Industry, Inc. v. Calhoon, 957 F. 2d 1555, cert. denied, 506 U. S. 953 (1992). Both decisions conflict— as to whether a state prevailing wage law “relate[s] to” apprenticeship programs, and as to the reach of the saving clause — with that of the Eighth Circuit in Minnesota Chapter of Associated Builders and Contractors, Inc. v. Minnesota Dept. of Labor and Industry, 47 F. 3d 975 (1995). We granted certiorari, 517 U. S. 1133 (1996), and now reverse.
II
Both lower courts determined, and neither party disputes, that the Electronic and Communications Systems JATC was a “plan, fund, or program [that] was established or is maintained for the purpose of providing for its participants . . . apprenticeship or other training programs.” §3(1), 29 U. S. C. § 1002(1). The question thus presented to us is whether California’s prevailing wage statute “relate[s] to” that “employee welfare benefit plan” within the meaning of ERISA’s pre-emption clause.
Since shortly after its enactment, we have endeavored with some regularity to interpret and apply the “unhelpful text” of ERISA’s pre-emption provision. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656 (1995). We have long acknowledged that ERISA’s pre-emption provision is “clearly expansive.” Id., at 655. It has
“a ‘broad scope,’ Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 739 (1985), and an ‘expansive sweep,’ Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 47 (1987); and ... it is ‘broadly worded,’ Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 138 (1990), ‘deliberately expansive,’ Pilot Life, supra, at 46, and ‘conspicuous for its breadth,’ [FMC Corp. v. Holliday, 498 U. S. 52, 58 (1990)].” Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992).
Our efforts at applying the provision have yielded a two-part inquiry: A “law ‘relate[s] to’ a covered employee benefit plan for purposes of § 514(a) ‘if it [1] has a connection with or [2] reference to such a plan.’ ” District of Columbia v. Greater Washington Bd. of Trade, 506 U. S. 125, 129 (1992) (quoting Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 96-97 (1983)). Under the latter inquiry, we have held pre-empted a law that “impos[ed] requirements by reference to [ERISA] covered programs,” Greater Washington Bd. of Trade, supra, at 130-131; a law that specifically exempted ERISA plans from an otherwise generally applicable garnishment provision, Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 828, n. 2, 829-830 (1988); and a common-law cause of action premised on the existence of an ERISA' plan, Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 140 (1990). Where a State’s law acts immediately and exclusively upon ERISA plans, as in Mackey, or where the existence of ERISA plans is essential to the law’s operation, as in Greater Washington Bd. of Trade and Ingersoll-Rand, that “reference” will result in pre-emption.
A law that does not refer to ERISA plans may yet be pre-empted if it has a “connection with” ERISA plans. Two Terms ago, we recognized that an “uncritical literalism” in applying this standard offered scant utility in determining Congress’ intent as to the extent of § 514(a)’s reach. Travelers, 514 U. S., at 656. Rather, to determine whether a state law has the forbidden connection, we look both to “the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,” ibid., as well as to the nature of the effect of the state law on ERISA plans, id., at 658-659.
As is always the case in our pre-emption jurisprudence, where “federal law is said to bar state action in fields of traditional state regulation,... we have worked on the ‘assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Id., at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)) (citation omitted).
A
Respondents and several of their amici urge us to conclude that § 1777.5 makes “reference to” ERISA plans. Because it seems that approved apprenticeship programs need not necessarily be ERISA plans, we decline to do so.
On its face, § 1777.5 appears to allow the lower apprentice wage only to a contractor who acquires apprentices through a “joint apprenticeship committee” — an apprenticeship program sponsored by the collective efforts of management and organized labor. See Cal. Lab. Code Ann. §§3075, 3076 (West 1989). Were this the true extent of the prevailing wage law’s reach, respondents’ “reference to” argument might be more persuasive. The CAC has, however, promulgated regulations making clear that the class of apprenticeship program sponsors who may provide approved apprentices is broader. See 8 Cal. Code Regs. § 230.1(a) (1992) (“Registered apprentices can only be obtained from the Apprenticeship Committee of the craft or trade in the area of the site of the public work” (emphasis added)); id., § 228(c) (defining an apprenticeship committee as “an apprenticeship program sponsor”); Cal. Lab. Code Ann. §3075 (West 1989) (stating that an “apprenticeship program sponsor may be a joint apprenticeship committee, unilateral management or labor apprenticeship committee, or an individual employer”). An apprenticeship program, it would seem, can be maintained by a single employer, and its costs can be defrayed out of that employer’s general assets.
To comport with § 302(c)(6) of the Labor Management Relations Act, 1947, 61 Stat. 157, as amended, 29 U. S. C. § 186(c)(6), the expenses of any joint apprenticeship committee must be defrayed out of moneys placed into a separate fund. The existence of that fund triggers ERISA coverage over programs like that of the Electronic and Communications Systems JATC. See ERISA Advisory Op. No. 94-14A (Apr. 20, 1994). But an employee benefit program not funded through a separate fund is not an ERISA plan. In Massachusetts v. Morash, 490 U. S. 107 (1989), we recognized a distinction between vacation benefits paid out of an accumulated fund and those paid out of an employer’s general assets. A fund established to pay vacation benefits, we held, constituted an employee welfare benefit plan; the policy at issue in Morash, whereby vacation benefits were paid out of general assets, did not. The distinction, we concluded, was compelled by ERISA’s object and policy:
“In enacting ERISA, Congress’ primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds. To that end, it established extensive reporting, disclosure, and fiduciary-duty requirements to insure against the possibility that the employee’s expectation of the benefit would be defeated through poor management by the plan administrator.” Id., at 115 (citation and footnote omitted).
Benefits paid out of an employer’s general assets presented risks indistinguishable from “the danger of defeated expectations of wages for services performed,” a hazard with which ERISA is unconcerned. Ibid.
The Secretary has carried this funded/unfunded distinction into areas that are, we think, analogous to that of apprenticeship programs. See, e. g., 29 CFR §2510.3-l(k) (1994) (scholarship programs paid for out of an employer’s general assets are not ERISA plans); §2510.3-l(b)(3)(iv) (training provided on the job with general assets does not constitute ERISA plan); see also ERISA Advisory Op. No. 94-14A (Apr. 20,1994) (apprenticeship programs paid for out of trust funds are ERISA plans); ERISA Advisory Op. No. 83-32A (June 21, 1983) (in-house professional development program financed out of general assets is not an ERISA plan). Although none of these regulations specifically answers the question whether an unfunded apprenticeship program is covered by ERISA, they suggest — as does our decision in Morash — that it is not.
Section 1777.5, then, “functions irrespective of. . . the existence of an ERISA plan.” Ingersoll-Rand Co., 498 U. S., at 139. An apprenticeship program meeting the substantive standards set forth in the Fitzgerald Act regulations can be approved whether or not its funding apparatus is of a kind as to bring it under ERISA. See Southern Cal. ABC, 4 Cal. 4th, at 429, n. 1, 841 P. 2d, at 1014, n. 1. Section 1777.5 is indifferent to the funding, and attendant ERISA coverage, of apprenticeship programs. Accordingly, California’s prevailing wage statute does not make reference to ERISA plans. We turn now to the question whether it nonetheless has a “connection with” such plans.
B
In Shaw v. Delta Air Lines, Inc., we held that the New York Human Rights Law, which prohibited “employers from structuring their employee benefit plans in a manner that discriminates on the basis of pregnancy,” and New York’s Disability Benefits Law, which required “employers to pay employees specific benefits,” “relate[d] to” ERISA plans. 463 U. S., at 97. Shaw and other of our ERISA pre-emption decisions, see, e. g., FMC Corp. v. Holliday, 498 U. S. 52 (1990); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 (1981), presented us
Question: What is the court whose decision the Supreme Court reviewed?
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Answer: |
songer_denovo | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's use of the standard of review, "de novo on facts" support the government?" The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court. 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".
William Alexander ALVAREZ-FLORES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 89-1788.
United States Court of Appeals, First Circuit.
Heard March 5, 1990.
Decided July 18, 1990.
Daniel Kanstroom, Cambridge, Mass., with whom Christina DeConcini, Somer-ville, Mass., was on brief, for petitioner.
Linda S. Wendtland, Office of Immigration Litigation, Civil Div., Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director, were on brief, for respondent.
Before CAMPBELL, Chief Judge, and BOWNES and CYR, Circuit Judges.
CYR, Circuit Judge.
Petitioner, William Alexander Alvarez-Flores, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his request for asylum and for withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) which provides the “sole and exclusive procedure” for the review of final orders of deportation. See Ipina v. INS, 868 F.2d 511, 513 n. 5 (1st Cir.1989). We deny the petition.
I
Petitioner Alvarez entered the United States on or about April 5, 1984, and was apprehended immediately by the Immigration and Naturalization Service (INS), which promptly instituted deportation proceedings. At the deportation hearings con- ■ ducted in Boston in 1985, petitioner conceded deportability under 8 U.S.C. § 1251(a)(2) but petitioned for political asylum and withholding of deportation.
The petition was predicated on an alleged fear that, as a young male opposed to participating on either side of the civil war, petitioner would be recruited forcibly, and possibly killed, by either the government or the guerrillas if he were to be returned to El Salvador. On two occasions petitioner was detained for possible recruitment, once by the army and once by the guerrillas. Although released unharmed on each occasion, Alvarez expresses fear lest in the future he be forced to join one side or the other, or suffer for his refusal. Alvarez further alleges that, as campesino cheese-makers, he and his family were particularly vulnerable to guerrilla demands for food. Since refusal was dangerous, Alvarez on occasion provided the guerrillas with food. Petitioner asserts that he feared that the government would regard him as a guerrilla because he provided food. Finally, Alvarez asserts that during the one-year period before he fled to the United States he “practically never left the house.”
The Immigration Judge denied petitioner’s requests for asylum and deportation but allowed Alvarez thirty days for voluntary departure. Petitioner filed a timely appeal with the BIA. After briefing by the parties and a de novo review of the administrative record, the BIA affirmed the decision of the Immigration Judge and concluded that Alvarez had “failed to demonstrate that a reasonable person in his circumstances would fear persecution for one of the grounds specified in the Act.”
II
The present appeal concerns claims under both the asylum and deportation provisions of the Immigration and Nationality Act (Act). Petitioner bears the burden of proving eligibility for asylum and for withholding of deportation. 8 C.F.R. §§ 208.5, 242.17(c); Youssefinia v. INS, 784 F.2d 1254, 1260 (5th Cir.1986); Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986).
Withholding of deportation is governed by section 243(h) of the Act, 8 U.S.C. § 1253(h), and must be granted if an “alien’s life or freedom would be threatened [in the country of deportation] on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. While withholding of deportation is mandatory for anyone able to meet the statutory requirements, the applicant must show a clear probability of persecution. INS v. Stevie, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984) (“clear probability” standard requires showing that it is “more likely than not” that applicant would suffer persecution).
Section 208(a) of the Act, 8 U.S.C. § 1158(a), gives the Attorney General discretion to grant asylum to an otherwise deportable alien who qualifies as a “refugee” within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). Section 101(a)(42)(A) defines “refugee” as anyone unable to return to the country of deportation “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id.
Thus, asylum involves a two-step process: the determination of statutory eligibility; and, the discretionary determination whether to grant asylum.
Asylum requires a showing that the applicant has a “well-founded fear of persecution.” Although we have yet to define the “final contours” of the “well-founded fear” standard, see Ipina, 868 F.2d at 514 n. 6 (canvassing different formulations of “well-founded fear” standard without deciding “final contours”), the BIA requires that an applicant show that a “reasonable person in his circumstances would fear persecution,” Matter of Mogharrabi, Interim Decision 3028 (BIA 1987).
We review findings of fact by the BIA under a deferential “substantial evidence” standard. See Novoa Umania v. INS, 896 F.2d 1, 2 (1st Cir.1990) (citing Diaz-Escobar v. INS, 782 F.2d at 1492-93). Moreover, given the BIA’s “Congressional mandate and the legal requirement that we show its decisions of this sort considerable respect,” we will not reverse simply because we disagree with the BIA’s evaluation of the facts. Id. at 4; Ipina, 868 F.2d at 514.
Petitioner argues that the BIA has misstated and misapplied the law. Yet, even accepting petitioner’s suggestion that “questions of law, such as whether the BIA applied the appropriate legal standard, [are reviewed] de novo,” Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir.1988) (citing Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988)), we are cautioned that when Congress, implicitly or explicitly, leaves gaps in a statutory program, “the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the ... program.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987). See Perlera-Escobar, 894 F.2d 1292, 1296 (11th Cir.1990) (although “questions of statutory interpretation [are reviewed] de novo,” the court is “obliged ... to defer to the BIA’s interpretation of the applicable statute if that interpretation is reasonable”) (citation omitted). Deference to the agency’s interpretation is called for particularly when Congress incorporates into the statute terms of “some ambiguity ... like ‘well-founded fear’ which can only be given concrete meaning through a process of case-by-case adjudication.” Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. at 2.
Thus, whether or not review is termed de novo, we are required to “respect the Board’s legal decision” as to whether the facts, as found, fall within the scope of the relevant statutory authority. Novoa-Umania at 2 (emphasis added). Cf. Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. at 1221 (“narrow legal question[s],” proper for the court to decide, are “quite different from the question of interpretation that arises in each case in which the agency is required to apply ... standards to a particular set of facts”).
Ill
Petitioner asserts three grounds entitling him to a withholding of deportation and to asylum. We review only the denial of the asylum claim. Since the standard for withholding deportation is more stringent, a petitioner unable to satisfy the asylum standard fails, a fortiori, to satisfy the former. See Ipina, 868 F.2d at 515; Diaz Escobar, 782 F.2d at 1492.
A
Petitioner first claims to deserve asylum because the government of El Salvador would attribute to him the political opinion that he supports the guerrillas since he has provided food in response to their demands. Although the petitioner asserts that he is in fact a neutral in the civil war, case law supports his contention that an imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the Act. See, e.g., Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.1985); Ramirez Rivas v. INS, 899 F.2d 864, 867 (9th Cir.1990).
Petitioner asserts that the BIA applied an incorrect legal standard in rejecting his claim to asylum on the basis of an imputed political opinion. Petitioner’s argument is premised on a single statement by the BIA that the record “does not suggest that the authorities were even aware of the respondent’s actions.... ” As petitioner correctly notes, an applicant need only prove that “the persecutor could become aware that the applicant possessed the belief or characteristic in question.” Matter of Mogharrabi at 9 (emphasis added). Considered in its context, however, the quoted statement appears to represent not so much a legal standard which petitioner was required to meet, as a determination by the BIA that the record in this case did not contain certain clearly relevant evidence which would have provided support (though not indispensable support) for applicant’s asserted fear of persecution. As such, the quoted statement constituted an accurate representation on a matter plainly appropriate for BIA consideration.
We now consider whether there was substantial support for finding that petitioner failed to demonstrate a well-founded fear of persecution on account of an imputed political opinion. We reiterate at the outset that the petitioner “bears a difficult burden on this issue, because ‘[a]ll the substantial evidence standard requires is that the BIA’s conclusion, based on the evidence presented, be substantially reasonable.’ ” Ipina, 868 F.2d at 514 (quoting Diaz-Escobar, 782 F.2d at 1493). The BIA rejected the claim for two reasons: first, petitioner did not show that any punishment that he allegedly fears for having aided the guerrillas would amount to “persecution within the meaning of the Act;” second, he failed to establish that the asserted fear was “well-founded.” Since we find that the BIA had a substantial evidential basis for finding that the petitioner's fear was not well-founded, we need not consider whether there was “persecution within the meaning of the Act.”
While its precise contours are not yet definitively established, it is clear that a “well-founded fear of persecution” has both a subjective and an objective component. The subjective component requires that the asserted fear be genuine. The objective component, on the other hand, contemplates that the applicant show “by credible, direct, and specific evidence ... facts that would support a reasonable fear that the petitioner faces persecution.” Diaz-Escobar, 782 F.2d at 1492. See also M.A. v. INS, 899 F.2d 304, 311 (4th Cir.1990) (en banc) (“To validate the ‘wellfoundedness’ of his fear, [petitioner] must set forth specific, concrete facts”); Cruz-Lopez v. INS, 802 F.2d 1518, 1522 (4th Cir.1986) (alien must show that fear has “enough of a basis in specific facts to be considered ‘well-founded’ upon objective evaluation”) (emphasis added). Moreover, as already noted, we must “respect” the BIA’s “application of statutory language to the facts of a particular case.” Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1st Cir.1990).
The only “evidential” basis for a “well-founded fear of persecution” was petitioner’s statement that extensive military activity in his home region meant that the authorities “could become aware” that he had supplied food to the guerrillas. Even if we were to consider this evidence sufficiently “specific” to satisfy petitioner’s burden of proof, the countervailing circumstantial evidence, and the reasonable infer-enees drawn therefrom, provided ample support for the BIA’s contrary conclusion.
First, the last occasion on which petitioner supplied food to the guerrillas was in 1980. Yet petitioner continued to live in El Salvador for four more years. Cf. Novoa-Umania at 3 (fact that applicant, subsequent to threats, continued to live for six months in San Salvador, without incident, evidences that there was no ongoing threat of persecution); Rodriguez-Rivera, 848 F.2d at 1006 (finding it “significant” that applicant continued to live undisturbed for three months after threat). Moreover, Alvarez admits that the military came to the area two months after this incident, at which time the government soldiers asked his family about the guerrillas. Nevertheless, petitioner has presented no evidence that the military caused any harm, or made any threats, to him or his family, notwithstanding the fact that his family continues to occupy the same farm. Cf. id. (fact that family of applicant continues to live in El Salvador unmolested, found relevant in assessing request for asylum); accord Ipina, 868 F.2d at 515; Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir.1987).
We cannot say that the BIA lacked a substantial basis for its conclusion that Alvarez’s fears were not well-founded. In Novoa-Umania at 3-4, the petitioner provided evidence that the military in El Salvador thought that he was on the side of the guerrillas and, therefore, twice “registered” him, treated him like “a great criminal,” and even threatened to kill him. Yet the evidence that he had lived in El Salvador for more than six months after that, without incident, and later received a passport from the government, was considered sufficient to support the BIA’s determination that the petitioner had not established a well-founded fear of persecution. Novoa-Umania at 3-4 (upholding BIA’s rejection of asylum application notwithstanding evidence of specific threats against petitioner, as threats merely may have “reflected the violent nature of the civil war and ... not ... an ongoing threat of persecution as a guerrilla supporter”).
B
Petitioner’s second claim is that the BIA erred by denying the claim to asylum predicated on petitioner’s political opinion of neutrality. Assuming for present purposes, without deciding, that neutrality constitutes a political opinion within the meaning of the Act and that petitioner has met the burden of proving neutrality, we find nonetheless that there was substantial evidence for the BIA’s finding that a fear of persecution on account of a political opinion of neutrality would not be well-founded in these circumstances.
In Novoa-Umania, we reasoned that a petitioner who asserts “neutrality” must demonstrate the existence of at least one of the following three conditions in order to satisfy the statutory requirement of a “well-founded fear of persecution on account of ... [a] political opinion.”
1) that a group with the power to persecute him intends to do so specifically because the group dislikes neutrals, or 2) that such a group intends to persecute him because he will not accept its political point of view, or 3) that one or more such groups intend to persecute him because each (incorrectly) thinks he holds the political views of the other side.
Novoa-Umania at 3.
The present record contains no evidence that neutrals in the Salvadoran civil war are persecuted in retaliation for their neutrality by either of the opposing forces. Petitioner’s only proffer of specific evidence in support of this claim is that Salvadoran soldiers seized and detained him for a period of twenty-four hours in an attempt to recruit him to their cause. Petitioner was released without harm. There was no evidence that the government threatened to harm him, either during his detention or thereafter. Cf. Mendez-Efrain, 813 F.2d at 283 (although detained for four days by military, fact that petitioner was released, without being tortured, molested, or even threatened, constitutes “substantial evidence” that he would not be subject to persecution). Indeed, following petitioner’s detention he obtained a passport to leave the country, notwithstanding his unwillingness to perform military service. Cf. Ipina, 868 F.2d at 515 (fact that she obtained visa and passport is evidence that petitioner’s fears were not well-founded); accord Rodriguez-Rivera, 848 F.2d at 1006.
We conclude that there is substantial support for the BIA’s finding that petitioner’s showing was inadequate to support a well-founded fear of persecution.
As concerns the asserted fear of persecution by the guerrillas, petitioner makes no claim that the guerrillas impute to him a political opinion sympathetic to the government. Furthermore, the only specific evidence of contact between petitioner and the guerrillas, which might lead petitioner to fear persecution on account of a position of neutrality, is insufficient to warrant reversal of the findings of the BIA. Petitioner testified that he was approached by guerrillas seeking to enlist him in their cause. Yet, even if forcible recruiting of a “neutral pacifist” by dissident groups should amount to political persecution, petitioner was neither forcibly recruited nor even detained. Rather, after being “asked” if he wanted to go with the guerrillas, petitioner declined, not on the ground that he was a neutral pacifist but because he was studying. The only response from the guerrillas was their admonition that he not tell anyone that he had been asked to join them.
We conclude that there is substantial support for the BIA’s rejection of asylum on these grounds. Cf Novoa-Umania at 4-5 (alien, whom guerrillas threatened with death and with loss of everything he had, failed to present sufficient evidence to overcome BIA’s finding that the threats were too old or too vague to support a well-founded fear).
C
The third claim presented on appeal is that petitioner, as a campesino cheesemaker who has provided the guerrillas with food on occasion, is entitled to asylum on the basis of a “well-founded fear of persecution on account of ... membership in a particular social group.” Petitioner argues that cheesemakers are especially likely to be subjected to guerrilla demands for food because the hard cheese the campesinos make is resistant to spoilage. Since petitioner already has acceded to such guerrilla demands, he asserts a fear of persecution by the Salvadoran military.
The BIA rejected the present contention on the ground that fear of persecution on account of “membership in a particular social group,” within the meaning of the Act, relates only to persecution “directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic [which] ... the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, Interim Decision 2986 (BIA 1985). See also Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.1985) (quoting Matter of Acosta). Since it considered that cheesemaking is not an immutable characteristic which cannot be changed by the campesinos, or which they should not be required to change, the BIA found that petitioner’s claim did not meet the statutory requirement. Petitioner responds that there is no merit in the BIA’s analysis because he is not simply a cheesemaker but a cheesemaker who already has supplied the guerrillas with food. Since the latter “characteristic” clearly is beyond petitioner’s power to change, he asserts that he is a member of a “social group,” within the meaning of the Act.
Without endorsing petitioner’s strained application of Matter of Acosta, supra, we conclude that substantial evidence supports the BIA’s denial of petitioner’s request for asylum. Petitioner did not establish that “a reasonable person” in his circumstances would fear persecution as a cheesemaker or even as a cheesemaker who has supplied food to the guerrillas. Petitioner presented no specific evidence that he or his family was threatened with persecution by the government on account of the fact that they were cheesemakers, or for any other reason.
Moreover, the only basis for petitioner’s contention that cheesemakers as a group are subject to persecution by Salvadoran authorities is a single 1983 decision by an Immigration Judge, withholding deportation and granting asylum to an applicant who feared that the government would persecute him because the authorities would believe that, as a master cheesemaker, he had sold cheese to the guerrillas. See Case No. A.26-801-349, Executive Office for Immigration Review, Baltimore, Maryland (Nov. 2, 1983) (Reply Brief, Appendix, Document 2). In that case, however, the Immigration Judge was presented with testimony by witnesses who had seen the dead bodies of other cheesemakers in the streets of the same area where the applicant in that case had lived. In contrast, the present petitioner not only failed to provide evidence that other cheesemakers had been harmed, but admitted that his own family, and four other families, continue to this day to make cheese in petitioner’s village, apparently without harassment by the authorities.
We conclude that the BIA had substantial evidence to support its determination that Alvarez-Flores has not proven that he has a “well-founded fear of persecution on account of ... membership in a particular social group, or political opinion.”
Petitioner attempts to raise a fourth claim on appeal. Since petitioner did not raise the claim before the BIA, however, the doctrine of exhaustion of administrative remedies precludes it here. Athehortua-Vanegas v. INS, 876 F.2d 238, 240 (1st Cir.1989) (since “requirement [of exhaustion] is jurisdictional,” we cannot consider issue not raised before BIA); 8 U.S.C. § 1105a(c). Cf. Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987) (“Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with regard to that question and deprives this court of jurisdiction to hear the matter.”).
Finally, we approve petitioner’s request that we reinstate the period of voluntary departure previously granted by the BIA. Although the government argues that the requested relief may be granted only by the district director of the INS, our decisions are to the contrary. See Umanzor Alvarado at 16; Novoa Umania at 5.
The petition for review is denied. The voluntary departure period shall commence on the date of the issuance of the court’s final mandate.
. The connection of asylum and deportation to issues of foreign policy may counsel special deference to INS decisions. The Supreme Court recently has written that "INS officials must exercise especially sensitive political functions that implicate questions of foreign relations, and therefore the reasons for giving deference to agency decisions on petitions for reopening or reconsideration in other administrative contexts apply with even greater force in the INS context.” INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 914, 99 L.Ed.2d 90 (1988) (footnote omitted). Although the quoted statement was made in the context of the Court's review of a BIA denial of a motion to reopen a petition for asylum, the Eleventh Circuit has "noted” its relevance to the interpretation of immigration statutes. Perlera-Escobar v. INS, 894 F.2d 1292, 1296 n. 3 (11th Cir.1990).
. Insofar as the claim that petitioner is entitled to asylum by reason of past persecution is not subsumed under the three other claims, he is precluded from raising it now, on appeal, for failure to raise it before the BIA in the first instance. See infra p. 8.
. Alvarez too received a passport from the government of El Salvador, after he supplied food to the guerrillas.
. The legal issue remains unsettled. Only the Ninth Circuit clearly has held that neutrality is a political opinion within the meaning of the Act. See, e.g., Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir.1989); Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir.1988). The Eleventh Circuit, on the other hand, explicitly declined to adopt this position. Perlera-Escobar, 894 F.2d at 1297-98 n. 4 (adoption of position that neutrality is a political opinion “would create a sinkhole that would swallow the rule”). The Fourth Circuit has found the issue "unclear.” M.A. v. IMS, 899 F.2d 304, 315 (4th Cir.1990).
Apparently only the Ninth Circuit has determined that mere refusal to join the guerrillas is itself a manifestation of neutrality within the meaning of the Act. Maldonado Cruz, 883 F.2d at 791.
. There is substantial evidence to support the BIA’s finding that petitioner failed to show a well-founded fear that the Salvadoran government would persecute him because he does not accept its viewpoint or because it believes, albeit incorrectly, that he favors the guerrillas. See supra, p. 5.
. In light of petitioner’s “pacifist neutrality,” he argues that any involuntary “recruitment” would assure persecution, whether by the army or by the guerrillas. While conceding that the raising of an army (with the attendant right to penalize violations of conscription laws) is a legitimate function of government, petitioner asserts that, in this instance, involuntary recruitment would lead to persecution because military service would violate petitioner’s genuine political and moral convictions. But cf. Uman-zor-Alvarado at 15 (evidence that Government will punish alien for failure to serve in army does not show that Government will "persecute him because of his political opinion"). Thus, petitioner implicitly challenges the analysis of political neutrality we adopted in Novoa-Uma-nia, for according to that analysis persecution on account of political neutrality requires that the intention of the persecutor be the "linch-pin" of the analysis. Quite to the contrary, petitioner argues that the moral convictions of the victim of the persecution are enough in themselves to constitute persecution "on account of ... political opinion.”
Our sister circuits appear divided on the issue. The Eleventh Circuit recently has stated that even though an alien may “fear persecution on account of what he believes to be political opinion ... where fear permeates the life of every citizen, the motivation of the persecutor becomes the linchpin of the analysis.” Perlera-Escobar, 894 F.2d at 1299. On the other hand, the Ninth Circuit recently held that "punishment of a conscientious objector for refusal to comply with a policy of mandatory conscription may amount to persecution within the meaning of the INA, if the refusal is based upon genuine political, religious, or moral convictions, or other genuine reasons of conscience.” Canas-Segovia v. INS, 902 F.2d 717, 726 (9th Cir.1990).
Question: Did the court's use of the standard of review, "de novo on facts" support the government? The courts generally recognize that de novo review is impractical for the bulk of agency decisions so the substantial evidence standard helps provide a middle course. Consider the de novo review of administrative action, not de novo review of trial court by appeals court.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appbus | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL MUTUAL INS. CO. OF THE DISTRICT OF COLUMBIA v. LIBERTY MUTUAL INS. CO., et al.
No. 11135.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 16, 1952.
Decided April 24, 1952.
Cornelius H. Doherty, Washington, D. C, with whom Alfred L. Bennett, Washington, D. C., was on the brief, for appellant.
Paul R. Connolly, Jr., Washington, D. C., with whom Howard Boyd, Washington, D. C., was on the brief, for appellees.
Before CLARK, BAZELON and WASHINGTON, Circuit Judges.
WASHINGTON, Circuit Judge.
This is a controversy between two insurance companies over which of them shall bear the burden of a loss.
Jennie Emens, the victim of a highway accident, recovered a judgment in New Jersey against James Mench, Jr., the owner and driver of a trailer-truck. Mench was insured under a policy issued to him by the National Mutual Insurance Company, and that company took charge of his defense. The judgment against Mench was never satisfied, and the present litigation arose when Jennie Emens brought' suit in the United States District Court for the District of Columbia against Mench’s insurer, the National company.
Under the terms of Mench’s policy, National’s liability did not begin until all other insurance available to the insured had been exhausted — that is, the policy was “excess” insurance. At the time of the accident, Mench’s truck was under lease to Elliott Bros. Trucking Company and was being driven by Mench on its business. Appellant National takes the view that insurance was available to Mench under a policy issued to Elliott Bros, by the Liberty Mutual Insurance Company. Believing itself therefore not to be liable under the policy it had issued to Mench, appellant lodged a third-party complaint against Elliott Bros, and the Liberty company. This complaint recited that National “presents” Liberty and Elliott Bros, as “parties to this action upon which recovery may be had by plaintiff,” and prayed that in the event of a judgment against National it be gjven judgment against appellees (third-party defendants) for the amount thereof. It is from the dismissal of this third-party complaint on summary judgment that the present appeal was taken.
Since 1946, Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., has permitted a defendant to move for leave to serve a third-party complaint only upon a person “who is or may be liable to him [the defendant] for all or part of the plaintiff’s claim against him.” (Emphasis added.) No longer is it possible to bring in a person simply because he is or may be liable to the original plaintiff. To the extent, then, that the third-party complaint rested on the theory that appellees were liable to Jennie Emens, it was unauthorized by the Rule and properly dismissible.
Appellant suggests, however, that the third-party complaint can be read as relying on the theory that appellees are or may be liable to appellant, defendant below, on the basis of “subrogation.” But there is no basis for subrogation in the present case. On principle, the loss has fallen squarely where it should — on Mench, the negligent driver of the vehicle, and on his insurer. They cannot shift it to the innocent employer-lessee, Elliott Bros., or to the latter’s insurer, simply because Mench was driving the vehicle on Elliott' Bros.’ business at the time of the wrongdoing. See Kennedy v. Travelers Ins. Co., 127 Misc. 665, 217 N.Y.S. 261; American Automobile Ins. Co. v. Penn Mutual Indemnity Co., 3 Cir., 161 F.2d 62. Compare George’s Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219.
Nothing in the insurance contracts here involved calls for a different result. There might perhaps be subrogation if Mench were covered as an insured by the Elliott Bros, policy, since recourse to Liberty’s liability might then be required before resort to the “excess insurance” provided by appellant’s contract with Mench. Cf. Builders & Mfrs. Mutual Cas. Co. v. Preferred Automobile Ins. Co., 6 Cir., 118 F.2d 118. But Mench was not an insured under the Elliott Bros, policy. The omnibus coverage clause of that policy does state that “the unqualified word ‘insured’ includes the named insured [Elliott Bros. Trucking Company] and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof * * But it goes on to say that °“The insurance with respect to any person or organization other than the named insured does not apply: * * * (d) with respect to any hired automobile, to the owner therof or any employee of such owner; * *
Mench, as the owner of the vehicle hired by Elliott Bros., was thus excluded from the definition of the term “insured.” The intent is clear: if an injured party sues the named insured [Elliott Bros.] and recovers, the insurance company will be liable ; but if he brings suit solely against the owner of a hired vehicle [Mench], the company assumes no responsibility either to the owner of the vehicle or to the injured party.
Nor is this result changed by the so-called “ICC endorsement” included in the policy which Liberty issued to Elliott Bros. The endorsement provides:
“In consideration of the premium stated in the policy to which this endorsement is attached, the company hereby agrees to pay any final judgment recovered against the insured for bodily injury to or the death of any person * * * resulting from the negligent operation, maintenance, or use of tíre motor vehicles under certificate of public convenience and necessity or permit issued to the insured by the Interstate Commerce Commission”.”
The endorsement was required by the Interstate Commerce Act, 49 U.S.C.A. § 315, for the protection of members of the public; it doubtless would have enured to the benefit of Jennie Ernens, had she chosen to sue Elliott Bros. But it hardly serves to shift Mench’s liability from his own insurer to Elliott Bros.’ insurer. Nor does it make it Menc'h an “insured” under the Liberty policy; that is still a matter governed by the express provisions of the body of the contract.
There being no genuine issue of material fact, and the third-party complaint being subject to dismissal under Rule 14(a), the grant of summary judgment was proper. The judgment of the District .Court will accordingly be
Affirmed.
. 3 Moore’s Federal Practice 405 et seq. (2d Ed. 1948).
. The other exclusions are:
“(a) with respect to an automobile while used with any trailer owned or hired by the insured and not covered by like insurance in the company; or with respect to a trailer while used with .any automobile owned or hired by the insured and not covered by like insurance in the company;
“(b) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof;
“(c) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer;
♦ * * * * *
“(e) with respect to any non-owned automobile, to any executive officer if such automobile is owned by him or a member of his household.”
These exclusions have certain common characteristics: exception (a) is expected to be covered by specially written insurance; (b), (d) and (e) relate to independent contractors, who should obtain their own insurance; (c) is expected to be covered by workmen’s compensation insurance. In each instance, the intent is to exclude certain persons and organizations from the definition of “insured” under the policy. Cf. Malisfski v. Indemnity Ins. Co. of North America, 4 Cir., 135 F.2d 910; Notes, 72 A.L.R. 1415, 106 A.L.R. 1265, 126 A.L.R. 555. Lumber Mutual Casualty Ins. Co. of New York v. Stukes, 4 Cir., 164 F.2d 571, cited by appellant, is not to the contrary.
. The endorsement was evidently designed to eliminate the “independent contractor” defense. Cf. War Emergency Co-op. Ass’n v. Widenhouse, 4 Cir., 169 F.2d 403, certiorari denied 335 U.S. 898, 69 S.Ct. 300, 93 L.Ed. 433.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
sc_lcdisposition | C | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
WEST VIRGINIA v. UNITED STATES
No. 85-937.
Argued November 10, 1986
Decided January 13, 1987
Marshall, J., delivered the opinion for a unanimous Court.
Charles G. Brown, Attorney General of West Virginia, argued the cause for petitioner. With him on the briefs were Silas B. Taylor, Deputy Attorney General, and J. Bradley Russell, Assistant Attorney General.
Deputy Solicitor General Lauber argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, Charles A. Rothfeld, William Ranter, and Bruce G. Forrest.
Justice Marshall
delivered the opinion of the Court.
The issue in this case is whether the State of West Virginia is liable for prejudgment interest on a debt arising from a contractual obligation to reimburse the United States for services rendered by the Army Corps of Engineers.
r-H
On February 26, 1972, heavy rains and resulting floods caused the collapse of a coal waste dam on Buffalo Creek in southwestern West Virginia. The “Buffalo Creek disaster” caused over 100 deaths and millions of dollars of property damage and left thousands homeless. In August of that year, a series of storms caused widespread flooding and mudslides in the same region of the State. Although there was no additional loss of life, the “Gilbert Creek disaster” caused substantial property damage.
The President declared both events “major disasters,” qualifying the affected areas for federal relief under the Disaster Relief Act of 1970, Pub. L. 91-606, 84 Stat. 1744, 42 U. S. C. §4401 (1970 ed.) (DRA or Act), repealed Pub. L. 93-288, 88 Stat. 164. Section 226(a) of the Act authorized the Director of the Office of Emergency Preparedness to provide temporary housing, typically mobile homes, for persons displaced by the disaster. That section also governed site preparation for the mobile homes. It provided:
“Any mobile home or readily fabricated dwelling shall be placed on a site complete with utilities provided by State or local government, or by the owner or occupant of the site who was displaced by the major disaster, without charge to the United States. However, the Director may elect to provide other more economical and accessible sites at Federal expense when he determines such action to be in the public interest.” 42 U. S. C. §4436 (1970 ed.).
In the aftermath of both disasters, the State found itself unable to prepare sites for the mobile homes. It asked the Army Corps of Engineers to do so, and the Corps agreed. In late 1972 and early 1973, the Corps billed the State for its site preparation services. The State acknowledged the bills, but, despite several requests, failed to make any payment. After delaying at the State’s request, the United States brought suit against West Virginia in 1978, seeking to recover $4.2 million in site preparation costs plus prejudgment interest. West Virginia denied liability for the debt, claiming that the state official who had entered into the agreement had acted without authority. The District Court rejected this claim and found that the State was contractually obligated to the Corps for site preparation services. Civ. Action No. 78-2049 (SD W. Va., Sept. 27, 1982). The United States then moved for an order of prejudgment interest on the outstanding debt. The District Court denied the motion. It held that the appropriate analysis required an examination of the congressional purpose underlying the DRA and the relative equities between the parties. After completing that analysis, the District Court concluded that the State should not be liable for prejudgment interest. Civ. Action No. R-78-2049 (SD W. Va., Jan. 28, 1983).
The United States Court of Appeals for the Fourth Circuit affirmed the District Court’s holding that the State was contractually obligated on the debt, but reversed the determination that the State was not liable for prejudgment interest. 764 F. 2d 1028 (1985). It held that the question was governed by federal law, under which prejudgment interest was allowable as a matter of right in a breach-of-contract action where the amount due was liquidated, ascertained, or agreed to. Id., at 1030-1031. The Court of Appeals rejected the District Court’s conclusion that the determination whether prejudgment interest was owing depended on a balancing of equities, but held that, even if it were to apply the balancing test, the United States would prevail. Id., at 1032-1033. It remanded the case to the District Court to enter an award of prejudgment interest. Wé granted certiorari, limited to the question whether West Virginia was properly required to pay prejudgmént interest. 475. U. S. 1009 (1986). We affirm.
II
“[T]he rule governing the interest to be recovered as damages for delayed payment of a contractual obligation to the United States is not controlled by state statute or local common law. In the absence of an applicable federal statute, it is for the federal courts to determine, according to their own criteria, the appropriate measure of damage, expressed in terms of interest, for nonpayment of the amount found to be due.” Royal Indemnity Co. v. United States, 313 U. S. 289, 296 (1941); see also Clearfield Trust Co. v. United States, 318 U. S. 363, 366-367 (1943). While there are instances in which state law may be adopted as the federal rule of decision, see United States v. Yazell, 382 U. S. 341 (1966), this case presents no compelling reason for doing so. A single nationwide rule would be preferable to one turning on state law, and the incorporation of state law would not give due regard to the federal interest in maintaining the apportionment of responsibility Congress devised in the DRA. Finally, application of a federal rule would not “disrupt commercial relationships predicated on state law,” United States v. Kimbell Foods, Inc., 440 U. S. 715, 729 (1979) (footnote omitted), since state law would not of its own force govern contracts between a State and the Federal Government.
Given that state law may neither govern of its own force nor be adopted as the federal rule of decision, it remains for us to apply the federal rule. In Board of Comm’rs of Jackson County v. United States, 308 U. S. 343 (1939), this Court addressed the issue. There, the Court considered whether the political subdivision of a State should be liable to the United States for prejudgment interest on a tax refund owed to a Native American on whose behalf the Federal Government had brought suit. The Court held that prejudgment interest would not be assessed. While the Court noted that certain defenses asserted by States were ineffective as against the Federal Government because of the historic immunity of the sovereign from those defenses, id., at 351, it determined that interest, which lacked comparable historical roots, could not simply be required with respect to all claims by the United States against a State or its political subdivision. It therefore held that, before applying the usual rule regarding prejudgment interest as against a private party to a State, a federal court should consider the interests of the two governments involved. Id., at 350. Noting that aggrieved taxpayers who were not Native Americans were not, under state law, entitled to interest on tax refunds, id., at 349, the Court concluded that individuals whose rights to a state tax refund arose under federal law should not be put in a better position than taxpayers whose rights arose under state law. Id., at 352. The Court further reasoned that it would be inequitable to award interest because the United States had not moved for eight years to collect the money owed by the county. Ibid.
Application of this analysis to the present case indicates that prejudgment interest should be required. No state policy compels any deviation from the longstanding rule that parties owing debts to the Federal Government must pay prejudgment interest where the underlying claim is a contractual obligation to pay money. Royal Indemnity Co. v. United States, supra, at 295-297. Moreover, federal policy plainly calls for an award of interest. The purpose of the DRA was not to relieve States of the entire burden of disaster relief, but to apportion that responsibility between the State and Federal Governments. See, e. g., §§ 101(a)(2) and (b) (Act was intended “to assist the efforts of the affected States,” and to provide “an orderly and continuing means of assistance by the Federal Government to State and local governments”); § 102(1) (Governor of any State in which a disaster occurs must certify the need for federal disaster assistance and “giv[e] assurance of the expenditure of a reasonable amount of the funds of such State, its local governments, or other agencies for alleviating the damage . . . resulting from such catastrophe”). Section 226(a) of the DRA reflects the statute’s allocative intent; it explicitly states that the Federal Government is not to bear the costs of site preparation for temporary housing for disaster victims. Prejudgment interest is an element of complete compensation, see, e. g., General Motors Corp. v. Devex Corp., 461 U. S. 648, 655-656, and n. 10 (1983); fully repaying the Federal Government for any costs of site preparation will further the distribution of the burdens of disaster relief that Congress intended.
This federal interest in complete compensation is likely to be present in any ordinary commercial contractual arrangement between a State and the Federal Government. In such a situation, it is also difficult to imagine a state interest that would justify relieving the State of its obligation to compensate the Federal Government fully for its efforts. Here, the State asserts none, except its understandable interest in not paying any more than it has to. The State argues that it should be exempt from paying prejudgment interest to the United States because, under its own law, it may not be held liable for interest unless it has consented to be. See Guaranty Trust Co. of New York v. West Virginia Turnpike Comm’n, 144 W. Va. 266, 271, 107 S. E. 2d 792, 796 (1959). But the source of this exemption is the State’s sovereign immunity, see id., at 274-275, 107 S. E. 2d, at 797-798; since the State must consent to be sued by private parties, it may consent in a limited fashion and refuse to be liable for prejudgment interest. Because States have no sovereign immunity as against the Federal Government, United States v. Texas, 143 U. S. 621, 646 (1892), any rule exempting a sovereign from the payment of prejudgment interest not only does not apply of its own force to the State’s obligations to the Federal Government, cf. Library of Congress v. Shaw, 478 U. S. 310 (1986), but also does not represent a policy the federal courts are obliged to further. Cf. Board of Comm’rs of Jackson County, 308 U. S., at 349, 352; United States v. Yazell, 382 U. S., at 352 (while courts must show “solicitude for state interests, particularly in the field of family and family-property arrangements,” these interests may be overridden to avoid injury to “clear and substantial interests of the National Government”). Accordingly, we hold that West Virginia may under the circumstances of this case be held liable for prejudgment interest.
We recognize that our holding may work a hardship upon the citizens of West Virginia, who have already suffered greatly as a result of the tragedies that gave rise to this litigation. But the solution for that problem must lie with Congress and not the courts. The DRA expresses a clear policy that responsibility for disaster relief should be apportioned in a particular way between the State and Federal Governments. A remedy for any asserted unfairness in this apportionment must be sought through the political process. The judgment of the Court of Appeals is
Affirmed.
The amount sought was $5,783,098.09 through October 18, 1982, plus $2,841.26 for every day thereafter until judgment was entered. App. to Pet. for Cert. C-3, n. 2.
Prejudgment interest serves to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress. See Comment, Prejudgment Interest: Survey and Suggestion, 77 Nw. U. L. Rev. 192 (1982).
The District Court held that whether interest had to be paid depended on a balancing of equities between the parties; the Court of Appeals rejected such an approach, as do we. This is not to say that an equitable consideration such as laches cannot bar an otherwise valid claim for interest, see Board of Comm’rs of Jackson County v. United States, 308 U. S. 343, 352-353 (1939).
Petitioners contend that United States v. North Carolina, 136 U. S. 211 (1890), establishes that a State may not be liable for interest, even to the United States, unless it consents either by statute or in a form authorized by statute. That case was decided before United States v. Texas, 143 U. S. 621 (1892), in which this Court held dispositively that States retain no sovereign immunity as against the Federal Government. We do not speculate as to whether the result in United States v. North Carolina could have been sustained on a rationale other than the one the Court articulated there.
West Virginia does not have a general policy against prejudgment interest. Under West Virginia law, such interest has been available by statute in contract actions between private parties since 1868. See W. Va. Code § 56-6-27 (1966) (the jury in all contract actions “shall find the aggregate of principal and interest due at the time of the trial”); W. Va. Code, Ch. 131, §14 (1923) (same); W. Va. Code, Ch. 120, §14 (1882) (same); W. Va. Code, Ch. 131, § 14 (1868) (same). Moreover, in 1981, W. Va. Code § 56-6-31 was amended to provide for prejudgment interest in cases other than contract actions, except where otherwise provided by law, where a judgment provided for special damages as defined in the statute, or liquidated damages. W. Va. Code § 56-6-31 (Supp. 1986).
We decline to attribute any significance for purposes of this case to the Act of Jan. 12, 1983, Pub. L. 97-452, 96 Stat. 2467. This statute prescribes the interest payable by “person[s]” to the Federal Government, 31 U. S. C. § 3717(a)(1), but excludes from the definition of “person” any “agency ... of a State government, or of a unit of general local government.” 31 U. S. C. § 3701(c). As stated in § 3717(g)(2), this statute does not apply to claims arising under contracts entered into before October 25, 1982, and therefore has no force here. We can draw no inference about Congress’ comprehension of the federal common law of interest from its enactment, without any discernible legislative history, of a definitional section excluding state agencies from those “persons” statutorily required to pay interest on debts owed to the Federal Government. Moreover, we venture no opinion regarding the question whether this enactment was intended to abrogate or leave intact the federal common law governing when a State must pay interest to the Federal Government. See Pennsylvania Dept. of Public Welfare v. United States, 781 F. 2d 334, 341-342 (CA3 1986); Perales v. United States, 598 P. Supp. 19, 23-24 (SDNY), aff’d, 751 F. 2d 95 (CA2 1984) (per curiam).
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer: |
songer_r_bus | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Darrell TAYLOR, d/b/a Darrell Taylor Topographic Charts, Plaintiff-Appellee, v. Joseph B. MEIRICK, d/b/a Lakes Illustrated, Defendant-Appellant.
No. 83-1098.
United States Court of Appeals, Seventh Circuit.
Argued May 9, 1983.
Decided July 7, 1983.
Rehearing Denied Aug. 9,1983.
James Van Santen, Hill, Van Santen, Steadman, Chiara & Simpson, Chicago, 111., for defendant-appellant.
Curtis Eric Edlund, Park Ridge, 111., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, POS-NER, Circuit Judge, and ROSENN, Senior Circuit Judge.
Hon. Max Rosenn of the Third Circuit, sitting by designation.
POSNER, Circuit Judge.
This appeal from a judgment for the plaintiff in a suit for copyright infringement raises questions regarding the statute of limitations in the Copyright Act of 1976 and the methods for determining damages in copyright and, by implication, other business-tort cases.
In 1974 the plaintiff, Taylor, doing business as Darrell Taylor Topographic Charts, copyrighted maps for use by fishermen of three Illinois lakes. The validity of his copyrights is conceded, as is the fact that the defendant, Meirick, doing business as Lakes Illustrated, copied the maps in 1976 and 1977 without Taylor’s authorization. But this suit was not filed till May 8,1980, and Meirick argues that it is barred by the three-year statute of limitations in the Copyright Act of 1976 (which is conceded to govern this case). The magistrate who tried the case with the consent of the parties disagreed, and awarded Taylor damages of $22,700 and attorney’s fees of $10,-000.
The Copyright Act provides that “no civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). If Meirick had quit selling the infringing maps before May 8,1977, and had taken reasonable steps by then to get them back from his dealers before the maps were resold to consumers, this suit would be time-barred even if — as happened — the maps were still being sold years later by dealers who had bought them from Meirick before May 8, 1977, but had not gotten, or had ignored, the message and continued selling them to the public. See Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1110 (2d Cir.1977); Maloney v. Stone, 171 F.Supp. 29, 32 (D.Mass.1959) (Wyzanski, J.). But knowing that he had placed infringing copies in the hands of his dealers Meirick could not sit on his hands while they sold them. A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts § 322, Comment c (1965). This principle applies to a statutory tort such as copyright infringement. So if Meirick failed to take reasonable steps to prevent infringement by his dealers he became a participant in their infringements. Since there was abundant evidence that retailers were selling the infringing maps even after the trial began, it was Meirick’s burden to prove that the selling had continued despite his reasonable efforts to recall the maps. The magistrate found that Meirick had not carried this burden and we cannot say that her finding was clearly erroneous.
And this assumes that Meirick really did stop selling the maps before May 8, 1977, as he testified. The magistrate believed Taylor’s testimony that he ordered and received infringing maps from Lakes Illustrated in 1979. This testimony was vague, self-serving, and uncorroborated; the maps themselves were not put into evidence; and Taylor’s general credibility as a witness was undermined by the testimony he gave about the costs he would have incurred in selling more maps had there been no infringement — of which more anon. But it makes no difference whether Meirick himself was selling infringing maps in 1979, since his retailers were and he made insufficient efforts to prevent them from doing so.
The irrelevance of when Meirick himself stopped infringing is further shown by the uncontested fact that Taylor did not learn of the infringements until 1979. Often, whether or not the defendant has done anything to conceal from the plaintiff the existence of the cause of action, the statute of limitations is tolled until the plaintiff learned or by reasonable diligence could have learned that he had a cause of action. Consider liability for defective products: although the tort is complete when the victim is injured, if the etiology of the injury is mysterious — as is often the case with injuries from drugs and chemicals — the tendency in modern law is to toll the statute of limitations until the victim could reasonably have discovered the cause of his woe. See, e.g., Needham v. White Laboratories, Inc., 639 F.2d 394, 399 (7th Cir.1981); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 813 (2d Cir.1960). The approach is not limited to personal-injury cases. For example, Pollock v. Hafner, 108 Ill.App.3d 410, 64 Ill.Dec. 156, 439 N.E.2d 85 (1982), applies it to architectural malpractice. Although we cannot find a copyright case on point, a similar principle may apply in such cases. The fact that a publisher loses sales to a competitor is not in itself a clue to copyright infringement, since there is vigorous competition among copyrighted works. So we doubt that every time the sales of a publication dip, the publisher must, to preserve his right to sue for copyright infringement, examine all of his competitors’ publications to make sure none is infringing any of his copyrights. Probably it should be enough to toll the statute of limitations that a reasonable man would not have discovered the infringement; and there is no evidence that Taylor was unreasonable in failing to discover the infringing maps before 1979.
In any event, there is no doubt that the copyright statute of limitations is tolled by “fraudulent concealment” of the infringement. See, e.g., Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 340-41 (5th Cir.1971); Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F.2d 570, 573-74 (4th Cir.1976). Although these are not decisions under the 1976 Copyright Act, the statute of limitations in that Act was taken without material change from the one that had been added to the previous Act in 1957. See Act of Sept. 7, 1957, Pub.L. 85-313, 71 Stat. 633; H.Rep. No. 1476, 94th Cong., 2d Sess. 164 (1976), U.S.Code Cong. & Admin. News 1976, p. 5659. The term “fraudulent concealment” implies active misconduct, but there was that here. Meirick had put his own copyright notice on his copies of Taylor’s maps. This was calculated to throw purchasers, and Taylor himself, off the scent; only a close inspection of Meirick’s maps would have revealed that they were copies. Modem maps of the same area resemble each other closely — it would be most unsettling if, like medieval maps, they did not! The features that made Taylor’s maps copyrightable — and we repeat that the validity of his copyrights is not contested — were subtle and would easily escape notice with another’s name affixed as copyright holder.
Although many cases state that mere ignorance of a cause of action does not toll the statute of limitations, in context these statements invariably mean only that the plaintiff has a duty of diligence: it is not enough that he did not discover he had a cause of action, if a reasonable man in his shoes would have. See, e.g., Campbell v. Upjohn Co., 676 F.2d 1122, 1127 (6th Cir. 1982). The significance of fraudulent concealment (as where price-fixers take steps to conceal their conspiracy from buyers) is that it frustrates even diligent inquiry. In a case such as this, where even if there had been no active concealment by the tortfeasor the injured party would have had no reason to suspect that he was the victim of a tort, there may be no duty of inquiry at all. But even if there is, Meirick’s action in putting his own copyright on maps he had copied from Taylor, an action calculated to obstruct any inquiry that Taylor might have made into the reasons for his losing sales, would toll the statute of limitations.
The next question is whether Taylor can complain about infringing sales that occurred more than three years before he sued. He invokes the supposed rule that only the last infringing act need be within the statutory period. Oddly, considering how often the issue must arise, we have found little mention of such a rule in the cases. Two district court cases uphold the rule (none reject it), see Baxter v. Curtis Industries, Inc., 201 F.Supp. 100 (N.D.Ohio 1962); Cain v. Universal Pictures Co., 47 F.Supp. 1013, 1018 (S.D.Cal.1942), but Cain is not very explicit. However, there is no doubt of the rule’s validity if it is regarded not as something peculiar to copyright law but as the application to that law of the general principle that the statute of limitations does not begin to run on a continuing wrong till the wrong is over and done with (this seems to be the approach in Cain). See, e.g., Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir.1979); Railing v. United Mine Workers of America, 429 F.2d 780, 783 (4th Cir.1970).
The principle strikes a balance between the plaintiffs interest in being spared having to bring successive suits, and the two distinct interests, Gates Rubber Co. v. USM Corp., 508 F.2d 603, 611 (7th Cir.1975), that statutes of limitations serve. One is evidentiary — to reduce the error rate in legal proceedings by barring litigation over claims relating to the distant past. The other is repose — to give people the assurance that after a fixed time they can go about their business without fear of having their liberty or property taken through the legal process. Apart from the harmful effect of uncertainty on planning, it is more painful to lose what you have come to think of as your own than it is gratifying to get back something you wrote off many years ago and have grown accustomed to doing without. See Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 477 (1897); cf. Hirshleifer, Price Theory and Applications 61 (1976). When the final act of an unlaw- ' ful course of conduct occurs within the statutory period, these purposes are adequately served, in balance with the plaintiff’s interest in not having to bring successive suits, by requiring the plaintiff to sue within the statutory period but letting him reach back and get damages for the entire duration of the alleged violation. Some of the evidence, at least, will be fresh. And the defendant’s uncertainty as to whether he will be sued at all will be confined to the statutory period. His uncertainty about the extent of his liability may be greater, but that is often true in litigation.
Meirick’s infringement was a continuing wrong. He copied Taylor’s maps in 1976 and 1977 and either sold copies till 1979, which was well within three years of the bringing of this suit, or at least became party to infringements by his dealers which continued till after the suit was filed. The initial copying was not a separate and completed wrong but simply the first step in a course of wrongful conduct that continued till the last copy of the infringing map was sold by Meirick or with his connivance.
Alternatively, since Taylor was unaware of the infringements until 1979, and (in part because of Meirick’s efforts at concealment) could not have been expected to discover them earlier by the exercise of reasonable vigilance, either of the tolling principles discussed earlier would allow him to collect damages for acts of infringement more than three years in the past, at least if he acted promptly once he discovered them, and he did. He notified Meirick of the infringement as soon as he discovered it in 1979 and Meirick sent back a soothing and, the magistrate thought, false assurance that the infringing plates had been destroyed long ago. Taylor sued promptly when he discovered that infringing maps were still being sold with the complicity of, and possibly directly by, Meirick.
The next question is whether damages were calculated correctly. The $22,700 in damages that the magistrate awarded to Taylor consisted of two items — Taylor’s losses ($19,300), and Meirick’s profits ($3,300) (we have rounded off all figures to the nearest $100). The losses were calculated as follows. In 1974 Taylor’s gross revenue from sales of the maps infringed by Meirick beginning in 1976 was $4,700 and in 1975 it was $4,900. The average revenue for the two years — the pre-infringement period — was thus $4,800. Taylor assumed that but for the infringement he would have continued to gross this amount every year throughout the damage period, which is to say till the end of 1980 (he dropped his original contention that Meirick had infringed beyond then). This made his projected revenue for the five-year period 1976 through 1980, $23,900. His actual revenue was $4,600, and $19,300 is the difference.
Taylor calculated Meirick’s profits from selling the infringing maps as follows. During the damage period Meirick sold 150 different maps; the three infringing maps represent 2 percent of this figure; 2 percent of Meirick’s gross profits for the years 1976 through 1980 as shown on his federal income tax returns for those years is $3,300.
The damage calculations contain a number of serious errors which bring to mind Judge Friendly’s cautionary remarks in a related context about “an array of figures conveying a delusive impression of exactness.” Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906, 912 (2d Cir.1962). To begin with, there is double counting. Taylor’s basic damage theory was that Meirick had sold maps on which Taylor would have made $19,300 in profits, yet the $3,300 figure is Taylor’s estimate of Meirick’s profits on the same maps. The Copyright Act of 1976 entitles the copyright owner “to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. § 504(b). But the clause we have italicized may not be ignored. If the profits the owner would have made but for the infringement are equal to the profits the infringer made by selling the copyrighted item, and the owner proves up his lost profits, the “not taken into account” clause, eliminating an ambiguity with regard to the possibility of double recovery under the 1909 Act, see Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1175-77 (9th Cir.1977), bars the owner from receiving an additional award of damages based on the infringer’s profits. See H.Rep. No. 1476, supra, at 161; 3 Nimmer on Copyright, ¶ l4.01[A], at p. 14-4 (1982); but see Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1376 (5th Cir. 1981) (dictum).
It is true that if the infringer makes greater profits than the copyright owner lost, because the infringer is a more efficient producer than the owner or sells in a different market, the owner is allowed to capture the additional profit even though it does not represent a loss to him. It may seem wrong to penalize the infringer for his superior efficiency and give the owner a windfall. But it discourages infringement. By preventing infringers from obtaining any net profit it makes any would-be infringer negotiate directly with the owner of a copyright that he wants to use, rather than bypass the market by stealing the copyright and forcing the owner to seek compensation from the courts for his loss. Since the infringer’s gain might exceed the owner’s loss, especially as loss is measured by a court, limiting damages to that loss would not effectively deter this kind of forced exchange. This analysis also implies that some of the “windfall” may actually be profit that the owner would have obtained from licensing his copyright to the infringer had the infringer sought a license.
But Taylor presented no evidence that selling the infringing maps was more profitable to Meirick than selling more of the original maps would have been to himself. True, he would not have had to present such evidence if he were seeking to recover Meirick’s profits as the sole item of damages, as the statute permitted him to do. But since he was trying to recover both his lost profits and Meirick’s profits, he had to show what part of Meirick’s profits he, Taylor, would not have earned had the infringement not occurred; in other words, he had to subtract his profits from Meirick’s. He did not do this; and the fact that his estimate of Meirick’s profits is far lower than his estimate of his own lost profits shows the radical impossibility of what he was trying to do.
All we have shown so far is that Taylor must choose between $19,300 and $3,300 (an easy choice). But in fact neither figure was computed correctly. $19,300 is, at best, an estimate of lost sales, not of lost profits. Even as an estimate of lost sales it is questionable. The use of before-and-after comparisons is a hallowed but coarse-grained and often abused method of estimating lost sales. The fact that Taylor’s sales of the three maps that were infringed fell by 45 percent in 1976, the first infringing year, and a further 88 percent the next year, is only slight evidence of the extent of the loss in sales caused by the infringement; post hoc ergo propter hoc is a naive theory of causation. But the declines are some evidence, made a little stronger by the fact that the bigger decline was in the second year of the infringement, as one would expect: for while we do not know when in 1976 Meirick began selling the infringing maps, presumably it was not on the first of the year; and even if it was, it would take a while to divert substantial sales from Taylor. The evidence of declining sales was enough to shift to Meirick the burden of producing some contrary evidence, which he attempted but failed to do. He showed there was a substantial price difference between Taylor’s maps and his, which could be powerful evidence that the maps were in different markets and therefore that Meirick’s infringing was unlikely to hurt Taylor — except that the price difference works in the wrong direction for Meirick. His maps sell at retail for $2.50 to $3, Taylor’s for $10. People who were buying Taylor’s maps for $10 would be delighted to be able to buy the same map for a fourth as much — though it would not be quite the same map; part of the difference in price reflects a difference in the quality of the materials used in making the maps. Meirick also showed that Taylor drastically reduced his advertising in 1977. If this had happened in 1976 it might be significant. But after Taylor’s sales nose-dived in 1976 it was only prudent for him to curtail his advertising.
So we think Taylor adequately though not amply demonstrated his lost sales. But a loss of revenue is not the same thing as a loss of profits. If you sell less of your product you will have lower costs, and the cost savings is a gain that must be offset against the loss of revenues in computing lost profit. Taylor did not subtract a penny from the $19,300 that he estimated to be his lost sales revenues. This implies, improbably, that he could have made all the lost sales at zero cost. He did testify that he had printed a large batch of the maps before 1976 and would not have had to print any more in order to make the lost sales, but we find this testimony unbelievable. If it were true, either Taylor destroyed the maps when he found out that he could not sell them (and there is no evidence of that), or he still has them (but there is no evidence of that either) and they are an asset on which he can still realize a profit — now that Meirick has finally ceased infringing — which would have to be subtracted from his sales revenue in estimating his net loss from infringement. When a plaintiff cpntends that lost sales revenue would have been all profit, the contention is sufficiently improbable to require him to come forward with substantiating evidence, which Taylor failed to do. As we do not know what fraction of the $19,300 in lost sales represents profit, we cannot uphold the award of damages in this amount or even impose a remittitur.
Taylor’s alternative method of computation, which yielded a figure of $3,300 from Meirick’s lost profits, was also deficient. Though labeled “gross profits,” the figure is actually sales revenue minus cost of goods sold. Other costs, such as commissions, rent, telephone, and repairs, were not deducted although clearly shown on Meirick’s income tax returns. When they are deducted it appears that Meirick had no net profits for the years in question. But it is possible, indeed likely, that he would have incurred at least some of these costs (rent, for example, and basic phone service) even if he had not sold the infringing maps; and to the extent this is so, his “gross profits” were real profits in the only sense relevant to damages calculation — they were his residual income after all costs necessary to generate the income were subtracted. Costs that would be incurred anyway should not be subtracted, because by definition they cannot be avoided by curtailing the profit-making activity. This principle is well established in the treatment of overhead costs in calculating damages for breach of contract. See Farnsworth, Contracts 854-55 (1982).
Although subtracting just one cost item from the revenues shown on Meirick’s income tax returns was an extremely crude method of estimating Meirick’s total net profits, it satisfied Taylor’s burden of production. After all, he did subtract from the “gross profits” figure the cost most likely to vary with Meirick’s output, and it was up to Meirick to show what if any overhead items were really variable costs too. It is too much to ask a plaintiff who has proved infringement also to do the defendant’s cost accounting.
But we cannot accept Taylor’s estimate that 2 percent of Meirick’s total net profits is allocable to the infringing maps. First, there is no evidence that the infringing maps represented 2 percent of Meirick’s total map sales as distinct from 2 percent of the titles in his inventory of maps. Second, half of Meirick’s business consists of sales of something called a “pH meter,” and Taylor lumped the profits on those sales in with the profits of Meirick’s map business to get the figure that he multiplied by 2 percent in order to estimate Meirick’s profits on the infringing maps. True, “in establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.” 17 U.S.C. § 504(b). But all that means is that Taylor could have made out a prima facie case for an award of infringer’s profits by showing Meirick’s gross revenues from the sale of the infringing maps. It was not enough to show Meirick’s gross revenues from the sale of everything he sold, which is all, really, that Taylor did. If General Motors were to steal your copyright and put it in a sales brochure, you could not just put a copy of General Motors’ corporate income tax return in the record and rest your case for an award of infringer’s profits.
The last issue is whether the magistrate erred in awarding Taylor his attorney’s fees. The Copyright Act of 1976 authorizes the trial court “to award a reasonable attorney’s fee to the prevailing party ....” 17 U.S.C. § 505. There is no suggestion that the $10,000 the magistrate awarded is unreasonably high in relation to the effort expended by Taylor’s counsel and there was abundant evidence that the infringement was willful, so the magistrate acted well within her discretion in awarding this sum to Taylor. The only question is whether it should make a difference that we are reversing the award of damages to Taylor and remanding for a new trial on damages. This may not make a difference in the end. The magistrate granted Taylor an injunction which Meirick has not even appealed, and attorney’s fees have long been awarded in cases of willful copyright infringement even though no actual damages were awarded or even sought. See, e.g., Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406, 410 (2d Cir. 1946); Twentieth Century Music Corp. v. Frith, 645 F.2d 6 (5th Cir.1981) (per curiam). However, since the amount of damages awarded could affect the magistrate’s exercise of her discretion in awarding fees, see 3 Nimmer on Copyright, supra, ¶ 14.10[C], at pp. 14-68 to 14-69, we shall vacate the fee award with directions to her to make a new award at the conclusion of the proceedings on remand.
In summary, we affirm the magistrate’s decision on liability but reverse on damages, except that we uphold her finding that Taylor lost sales (not profits) of $19,300. We vacate the award of attorney’s fees, remand the case for a new trial limited to damages, and make no award of costs in this court.
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_usc1 | 29 | 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.
ALEXANDER SMITH & SONS CARPET CO. v. HERRICK et al.
No. 454.
Circuit Court of Appeals, Second Circuit.
July 13, 1936.
Burlingame, Nourse & Pettit, of New York City, and William J. Wallin, of Yonkers, N. Y. (Arthur E. Pettit, of New York City, of counsel), for appellant.
Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, both of Washington, D. C., and Robert S. Erdahl, for appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
Appellant is a carpet manufacturer with its sole manufacturing plant in Yonkers, N. Y., to which raw materials are shipped from outside New York State and from which appellant ships some finished products to customers outside New York State. The prayer in this suit is that appellees be enjoined from enforcement of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.) against the plaintiff, and from the further prosecution of, or the holding of hearings on, a complaint charging plaintiff with engaging in unfair labor practices affecting commerce within section 8 (1-3) of the act (29 U.S.C.A. § 158 (1-3) by discharging employees for union activity and by coercing employees in their selection of representatives for collective bargaining. Some of the employees are on strike. For the reasons stated in E. I. Du Pont De Nemours & Co. v. Boland (C.C.A.) 85 F.(2d) 12, decided this day, the appellant has not shown that any irreparable injury will be suffered if this injunction is denied, and under the provisions of the National Labor Relations Act, it has an adequate, complete, and exclusive remedy at law on a petition to the proper court for a subpoena, or for the enforcement or review of any order the board may enter.
Decree affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_initiate | F | 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.
Abraham J. HALPRIN, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 132.
Circuit Court of Appeals, Second Circuit.
March 28, 1946.
Abraham J. Halprin, of New York City, pro se (Bernard Rothman, of New York City, of counsel).
Harry Baum, of Washington, D. C., Sewall Key, Acting Asst. Atty. Gen., and Robert N. Anderson, Sp. Asst. to Atty. Gen., for respondent.
Before L. HAND, SWAN, and PHILLIPS, Circuit Judges.
PER CURIAM.
Affirmed on the authority of Paymer v. Commissioner, 2 Cir., 150 F.2d 334.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_appel1_1_3 | 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 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.
RECONSTRUCTION FINANCE CORPORATION v. MERRYFIELD et al.
No. 3852.
Circuit Court of Appeals, First Circuit.
April 8, 1943.
Harry Bergson, of Boston, Mass., John E. Tobin and Devine & Tobin, all of Manchester, N. H., for appellant.
Omer H. Amyot, of Manchester, N. H., for appellees.
Before MAHONEY and WOODBURY, Circuit Judges, and HEALEY, District Judge.
MAHONEY, Circuit Judge.
This case is here on appeal from a judgment of the district court in favor of the appellees. On June 24, 1941, the appellees filed a complaint against the F. M. Hoyt Shoe Corporation, hereinafter called “Shoe Corporation”, and the Reconstruction Finance Corporation, hereinafter called “R. F. C.”, for unpaid overtime compensation and for liquidated damages pursuant to the applicable provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 203 et seq. On July 25, 1941, the Shoe Corporation filed a motion to dismiss on the ground that it was not engaged in interstate commerce and on the same date the R.F.C. filed a motion to dismiss because no valid or effective service had been made upon it. There was a hearing on defendants’ motions on September 23, 1941. In its opinion of November 6, 1941, Merryfield v. F. M. Hoyt Shoe Corp., 41 F.Supp. 794, the District Court pointed out that the hearing was not strictly confined to the motions but developed into arguments on questions of law involved in the action and oral testimony was taken at that time. The court denied the motion of R.F.C. and dismissed the complaint against the Shoe Corporation and R.F.C. on the ground that the employees were not engaged in interstate commerce. An appeal was taken and on the authority of Kirschbaum v. Walling (Arsenal Building Corporation v. Walling), companion cases, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, we reversed the District Court and remanded the case for further proceedings. 1 Cir., 128 F.2d 452. Thereafter, the R.F.C. filed a motion on August 28, 1942, to dismiss the action on the ground that it was the United States within the meaning of the Act. Appellees filed an answer to this motion and sought its dismissal on the ground that the motion was dilatory; that it was too late to raise the point under Rule 12(a), (b), (g) and (h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and for the further reason that the R.F.C.was not the United States.' Appellees moved for judgment on the pleadings under Rule 12(c).
On October 9, 1942, the district judge in a written opinion expressly found on the authority of Reconstruction Finance Corporation v. J. C. Menihan Corporation, 1941, 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595, and Keifer & Keifer v. Reconstruction Finance Corporation, 1939, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784, that the R.F.C. was not the United States for the purposes of this suit. Judgment was entered for the appellees on October 13, 1942. On November 2, 1942, R.F.C. filed its notice of appeal and on November 13, 1942, it filed in the district court a motion to dismiss the action on the ground that the evidence failed to indicate that ‘‘plaintiffs were for the period alleged in their petition employees of the said defendant”. Appellees took no objection and made no answer to the filing of this motion. The district court entertained the motion and on November 18, 1942, in a written opinion dismissed it. The court construed the motion as a request for a specific finding as to whether or not the appellees were employees of R.F.C. or the Shoe Corporation. It found as a fact that, the “plaintiffs were working for the F. M. Hoyt Shoe Corporation but the business of that company could not be carried on without the financial aid of the R.F.C. Upon these facts I hold that the Reconstruction Finance Corporation is so closely connected with the F. M. Hoyt Shoe Corporation and its tenants engaged in manufacturing goods for interstate shipment that it comes within the purview of the Fair Labor Standards Act of 1938”.
In a statement of points relied upon on appeal filed December 2, 1942, the R.F.C. assigned as error: (1) the District Court’s denial of its motion to dismiss on the ground that it was the United States; and (2) its failure to rule that R.F.C. was not an employer within the Act.
At the oral argument before us- and in its brief, appellees took the position that the motion to dismiss on the ground that R.F.C. was the United States was dilatory and that it cannot be considered at this time because it was made too late in the proceedings. It is clear that the District Court by its consideration of this issue on its merits did not consider the motion to be dilatory. The view we take of this case, however, makes a consideration of this question unnecessary. Appellees took the further position that the motion to dismiss filed by appellant on November 13, 1942, was out of time, that the District Court should not have entertained it and that it is now too late for us to consider it. As we pointed out in our resume of the travel of this case, the appellees filed no answer to the motion and apparently as it appears from the record made no objection to .the filing of it by the appellant. The position of the appellees is that under Rule 12 (b) of the Federal Rules of Civil Procedure, appellant’s motion was too late, and that judgment having been entered appellant waived its right to raise an objection of this nature. We do not find that Rule 12 is applicable to the situation here presented. Rule 12 provides for defenses and objections and for judgment on the pleadings. 12(b) requires responsive pleading except that certain defenses may be made at the option of the pleader by motion such as: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; and (6) failure to state a claim upon which relief can be granted. 12 (g) and (h) provide respectively for consolidation of motions and for waiver of defenses. It is true, for example, that under Rule 12(b) a party who has made a motion for dismissal on the ground that his adversary has failed to state a claim upon which relief can be granted may not thereafter file a motion for a dismissal on the ground of improper venue. In such a case the first motion would constitute a waiver of the right to make the second motion. The motion by appellant filed on November 13, 1942, was considered by the District Court as a motion to make a specific finding and it so ruled. In view of the limited way in which the court treated this motion, we believe it is proper for us on appeal to consider this specific finding assigned as error by appellees. We are thus confronted with the problem whether the District Court was correct in its ultimate conclusion that R.F.C. was an employer of the appellees involved in the instant case.
In order to understand clearly the issue before us we state the facts in some detail. Appellees were employed at different times from October 1, 1940, to June 21, 1941, as watchmen, firemen and maintenance men. It is for these periods that they seek overtime compensation, liquidated damages, costs and attorneys’ fees. In 1934, the Shoe Corporation was engaged in the manufacture of goods in interstate commerce and in May of that year borrowed $112,500 from R.F.C. It gave as security a mortgage on its real estate. The Shoe Corporation leased some of its space in its factory to other tenants and in May, 1936, after it had ceased manufacturing it leased space which it had occupied to other manufacturers of shoes and associated industries engaged in interstate commerce. Shortly after it ceased manufacturing it assigned all its rents to R.F.C. A suspended credit account of the Shoe Corporation was set up in the Federal Reserve Bank in Boston, with an agreement that all maintenance expenses of the plant were to be paid from that account and the balance was to be used in payment of principal and interest on the loan from R.F.C.
M-rs. Olive Matthews, Secretary of the Shoe Corporation, testified without contradiction that during the period alleged in the complaint she collected rents and forwarded them to the R.F.C. in Boston where they were placed in the suspended credit account. She had authority from John D. Murphy, President and Treasurer of the Shoe Corporation, to hire, fix rates of wages and to discharge the appellees without conferring with R.F.C. in any way. She kept a record of their time and forwarded it to R.F.C. R.F.C. drew checks in the names of the employees against the moneys received from the rents and sent them to her to be given to the appellees. They signed receipts for their pay to the Shoe Corporation and these were returned to R.F.C. At times she paid them out of petty cash and received a check from R.F. C. to replenish that account. Taxes and insurance were paid directly by checks of R. F.C. drawn on the suspended credit account. In all problems concerning help, purchases and maintenance of the property, she conferred with Murphy. Pier only contact with R.F.C. was in forwarding the rents and receiving checks for the payment of expenses. Murphy who had been President and Treasurer of the Shoe Corporation since July 1, 1931, testified that the Shoe Corporation certified expenses that' occurred in the maintenance of the property and that no major expenses were incurred unless the funds in the suspended credit account were adequate. He negotiated all leases without conference with or approval by R.F.C. He stated that R.F.C. could make no arbitrary deductions from the credit account without his permission. Any repairs that were made to the premisesi were authorized by him. He flatly asserted that the Shoe Corporation was in complete control of the premises and that any authority exercised by R.F.C. was consistent with its position as a mortgagee. Its control of the funds resulted from the assignment of the income derived from the rents.
As we pointed out in the statement of facts, the District Court did not find specifically that R.F.C. was for the period in question an employer of appellees. The judgment against R.F.C. was based upon its financial interest in the affairs of the Shoe Corporation. Unless we determine that such an interest creates an employer-employee relationship or that the applicable sections of the Act bring R.F.C. within its purview as an employer we must reverse the District Court. The cases are legion which have defined and commented upon the traditional concept of the employer-employee relationship. As was said in Williams v. United States, 7 Cir., 1942, 126 F.2d 129, 132: “There seems to be no dispute but that the employer-employee relationship exists only where the person, for whom the work is done, has the right to control and direct the work, not only as to the result to be accomplished by the work, but also as to the details and .means by which that result is accomplished. Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440; Jones v. Goodson, 10 Cir., 121 F.2d 176, 179.” Madison v. Phillips Petroleum Co., 5 Cir., 1937, 88 F.2d 515, certiorari denied 301 U.S. 703, 57 S.Ct. 946, 81 L.Ed. 1358; McLamb v. E. I. Dupont de Nemours & Co., 4 Cir., 1935, 79 F.2d 966; Commissioner of Internal Revenue v. Modjeski, 2 Cir., 1935, 75 F.2d 468.
The testimony of Mrs. Matthews and Murphy is clear that in the matter of hiring and discharging employees, directing them in their work and fixing their wages, the Shoe Corporation, through its officers, was in complete control and did not con-suit with nor receive advice from R.F.C. R.F.C. did not attempt to interfere with the internal management of the Shoe Corporation in so far as these appellees'were concerned and the. evidence indicates that it did not have the power to do so. The fact that R.F.C. drew checks upon the suspended credit account held in the name of the Shoe Corporation and that these checks were used in the payment of the employees does not produce an employer-employee relationship. Appellees in their brief concede that we do not have here all the usual common-law incidents of master and servant or employer and employee. We are, therefore, constrained to hold that the District Court could not on the basis of its own finding 'conclude that R.F.C. was an employer of these appellees in the ordinary sense that that term is used.
We must, therefore, look to the statute to determine whether there is anything in its language which requires a holding that R.F.C. is liable for the payment of unpaid overtime compensation and liquidated damages to these employees.
Appellees contend that R.F.C. suffered or permitted these employees to work for it within the meaning of these words as used in the Act. We are of the opinion that this position is unsound. R.F.C. as a mortgagee could not have permitted or suffered these employees to work for it unless it can be said that it' was in control of the premises and that it was to it that these employees gave their services. Stated differently, the very facts which determine whether R.F.C. was in control of the premises also determine whether Section 3(g) is applicable. The view we take of the case is that the Shoe Corporation until the time of the foreclosure remained in charge of the premises and directed its employees. In Bowman v. Pace Co., 5 Cir., 1941, 119 F.2d 858, 860, the question was raised whether the corporation- whose premises were watched by a night watchman suffered or permitted him to work for it. The court determined “if one has not hired another expressly, nor suffered or permitted him to work under circumstances where an obligation to pay him will be implied, they are not employer and employee under the Act.”Since we have concluded that R.F.C. was not in control of the premises, it follows that it was in no position to suffer or permit these employees to work for it.
Appellees contend that R.F.C. is an employer because it acted directly or indirectly in the interest of the Shoe Corporation in relation to its employees. This conclusion is based upon the financial arrangement between R.F.C. and the Shoe Corporation. This also appears to have been the reasoning of the district court. It may be that this definition of an employer has broadened the concept of employer-employee but even if it has we are of the opinion that the relationship of R.F.C. to the Shoe Corporation does not bring it within the express language of the Act. We may say in passing that two cases recently decided, Bowman v. Pace Co., supra, and Maddox v. Jones, D.C.1941, 42 F.Supp. 35, take the view that Congress did not intend to create new wage liabilities or to change the familiar rules laid down for the determination of the employer-employee relationship.
In the case before us the facts show that R.F.C. in order to protect its investment took an assignment of the rents from the Shoe Corporation and as part of that assignment an agreement was entered into by the parties whereby the maintenance expenses were to be deducted from the rents. This included the payment of wages to these appellees. As we have said, R.F.C. did not become an employer merely because it drew checks upon the suspended credit account to pay these employees. It was only the net rent which it received from the property which was deducted from the obligation of the Shoe Corporation. At most this was a bookkeeping transaction agreed upon in order to protect R.F.C. and to permit it to maintain close vigilance over the affairs of the Shoe Corporation. If the property produced no income R.F.C. would not have expended any further sums for the payment of the wages of these employees. The original loan of $112,500 is actually the only investment which R.F.C. made. All other transactions entered into by the parties were only to insure R.F.C. some return upon its investment. From these facts, we do not see how it can be said that R.F.C. acted directly or indirectly in the interest of the Shoe Corporation in relation to these appellees. We, therefore, conclude that R.F.C. cannot be held as an employer within the terms of the Act.
Appellees cite Williams v. Jacksonville Terminal Co. (Pickett v. Union Terminal Co.), 315 U.S. 386, 387, 62 S.Ct. 659, 86 L.Ed. 914; Fleming v. Palmer, 1 Cir., 1942, 123 F.2d 749; Cottrell v. Wetterau Grocery Co., 1 W.H.R. 744; Fleming v. Buettner & Co., Inc., 5 W.H.R. 279, and Mid-Continent Pipe Line Co v. Hargrave, 10 Cir., 129 F.2d 655, as presenting facts less favorable to the employees in which the courts have held that an employer-employee relationship existed. All the cases cited are clearly distinguishable and have no bearing on the issues before us.
The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal.
See. 203:
“(d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee.”
“(e) ‘Employee’ includes any individual employed by an employer.”
“(g) ‘Employ’ includes to suffer or permit to work.”
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_concur | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court.
Christopher Stacy POOL, Petitioner/Appellant, v. Earl B. DOWDLE, Respondent/Appellee.
No. 86-2172.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 13, 1987.
Decided Dec. 15, 1987.
Ron Kilgard, Phoenix, Ariz., for petitioner-appellant.
Barbara A. Jarrett, Phoenix, Ariz., for respondent-appellee.
Before HUG, NELSON and NOONAN, Circuit Judges.
NOONAN, Circuit Judge:
Christopher Stacy Pool appeals the denial of his petition for habeas corpus. His case has been ably argued on appeal, but we affirm the decision of the district court.
FACTS AND PROCEEDINGS
In 1982 Pool was a thirty-year-old produce salesman. He was out on bail pending trial for assault. He had been convicted in 1977 of possessing marijuana and had served a three year sentence of probation.
On the evening of February 19, 1982, Pool was driving his father’s Toyota in a deserted part of Yuma County, accompanied by his friend Brian Twist. Twist had invited Pool to go rabbit-hunting and Pool had brought a gun with him; but Twist suggested that Pool first aid him in planting two marijuana plants and as they drove they looked for a place to plant the plants.
Paul Connolly, a deputy sheriff of Yuma County, was working that night for a private employer, Camille Allec, patrolling for pay to catch thieves in Allec’s citrus groves. Connolly had worked in this capacity for two years and had made about thirty stops or arrests. He drove a “beat up” Yuma County Sheriff Department’s 1969 Ford pickup truck, not readily identifiable as a police vehicle. He himself was wearing levis, boots, and his uniform shirt with gold letters and gold circles on the arms and his police badge and name plate; he was also wearing a gun and gunbelt.
Connolly passed Pool in the Toyota and made a U-turn to follow him, eventually finding the Toyota parked on a rural road. Connolly parked head-on with the Toyota. There was no street lighting. Connolly’s own lights lit up the car, and he saw two people in the front seat and the plants in the rear. Connolly radioed his number, his location, the license number of the Toyota and the fact that it had marijuana in it to the Sheriff’s Department. He then turned on the red grill lights of his truck, walked in front of these lights and approached the driver’s side of the Toyota.
According to his testimony at the trial, Connolly had his flashlight in his right hand and shined the light into the truck. He saw the driver reach for his midsection and noticed a bulge on his right side. He ordered both driver and passenger to put their hands on the dashboard. He heard the driver say “fucking pig.” He saw the top two inches of an automatic pistol. With his right hand — his shooting hand— occupied with the flashlight, Connolly believes he threw the light into the car. He yelled and dove into the bushes, down a bank. As he dove, or just before, he heard the pop of a shot. He rolled twice, then turned, and fired back twice at headlights that turned out to be his own. One bullet was later found to have damaged the truck’s radiator, the other to have ricocheted off, leaving a dent. After his two shots, he crawled into a small hole. About 20 minutes later, Deputy Will Brooks drove up. The Toyota had gone. Connolly came out of the hole and told Brooks that “two Indians just took a shot at me and are armed with a .45 or .9 mm.”
At the trial, Pool and Twist testified that they were blinded by Connolly’s lights. When Connolly told them to place their hands on the dashboard, Pool was scared and reached for the gun. As he pulled up the gun he was hit in the face with the flashlight. To this extent, Pool and Twist’s testimony was not contrary to Connolly’s. Pool, however, denied saying anything to Connolly except “Get back” as he, Pool, put his hands on his gun, and both Pool and Twist maintained that they did not recognize Connolly as a police officer. On the critical issue of the shooting, Pool testified that before he fired he heard “a cannon blast” in his car and thought, “This man is trying to kill me.” He then “cocked the gun and stuck it out the window and fired a shot at the same time trying to start the car.” As he drove off, Pool heard “at least two shots.” Twist’s testimony as to the events was vague and not such as to inspire confidence in his memory or veracity. In his own words, he was “in total confusion.”
Pool was charged with the crime of aggravated assault with a deadly weapon. His defense was that he acted with justification. His first trial ended in a hung jury. In the second trial, the judge charged the jury that Pool was justified if two conditions were satisfied: that a reasonable person in his situation would have believed that physical force was immediately necessary to protect against another’s use or attempted use of unlawful physical force; and that he used or threatened no more physical force than would have appeared necessary to a reasonable person in his situation. No objection was made to this standard instruction. The case was sent to the jury at 6:12 p.m. and at 7:26 p.m. the jury returned a verdict of guilty.
Douglas W. Keddie, the trial judge, denied a motion for a new trial on July 13, 1982. He sentenced Pool to nine years in prison. Pool appealed to the Arizona Court of Appeals, attacking the admission of the marijuana and evidence of his bail status. He also challenged a limitation put on the cross-examination of Connolly and Brooks and the exclusion of expert testimony on proper procedures for a police stop. Other errors assigned were the denial of a directed verdict; denial of a motion to change the judge who was accused by Pool of prejudice; error in the jury instruction on Pool’s bail status; and error in rejecting Pool’s proffered instructions on retreat. The Court of Appeals affirmed the conviction; the Supreme Court of Arizona refused to review.
Pool, represented by new counsel, applied for habeas corpus. A magistrate recommended that his petition be dismissed without an evidentiary hearing. The district court accepted this recommendation and on March 10, 1986 denied the petition. Pool appealed to this court.
ISSUES
Pool presses two claims:
First, Pool maintains he was denied his rights under the Sixth Amendment “to present a defense.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). He sought to put on the stand a detective from the City of Yuma Police Department who as an expert would testify as to the proper police procedure to be used by an undercover officer identifying himself. The detective had testified at the first trial which ended in a deadlocked jury; Judge Keddie, who presided at both trials, stated that by the time of the second trial he had been persuaded by the prosecutor’s objections that the testimony was irrelevant and that the jury did not need it to understand the situation. Pool contends that the detective’s testimony “directly rebutted the theory of the government’s case that a reasonable person would have identified Mr. Connolly as a police officer.”
Second, Pool points to matter that Judge Keddie’s rulings precluded both juries from hearing: Five days after the encounter with Pool, Connolly was reprimanded for not reporting that he had been working for two years for pay for a private employer and using the county’s truck and gas; also for not giving “an adequate answer” to the Sheriff’s inquiry as to why the Sheriff had not been informed. Connolly was docked “100 hours of comp time” to compensate for the gas and wear and tear on the truck. The reprimand was to stay in his file one year.
The reprimand became an issue when defense counsel wanted to show that Connolly had lied to defense counsel in his pretrial statements. As part of that proof, defense counsel sought to introduce the reprimand. Judge Keddie interpreted the pretrial statements made by Connolly to defense counsel as ambiguous and did not believe the reprimand relevant to Connolly’s credibility. Accordingly, he refused to allow examination on either the reprimand or the statements to counsel.
On appeal to this court, Pool urges that cross-examination on the reprimand was necessary to bring out bias against Pool on Connolly’s part. As expressed by Pool’s brief:
Connolly had a motive and bias to testify falsely, not only to ingratiate himself with his superiors, but also to put a good face on his activities on the evening of the alleged crime, and ultimately, to get back at Mr. Pool_ [He] may reasonably have hoped that his reprimand would be suspended if he cooperated in the prosecution.
Pool argues further that Connolly’s reprimand could be interpreted as a reprimand for equivocating when questioned by the Sheriff and in this way would also have a bearing on his credibility. Denial of the opportunity to attack Connolly's credibility is, Pool maintains, a violation of the right “to be confronted with witnesses against him.” United States Constitution, Amendment VI; Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
ANALYSIS
We review anew the legal issues presented to the district court. Chatman v. Marquez, 754 F.2d 1531 (9th Cir.1985).
First. The admissibility of expert testimony is normally in Arizona as elsewhere a matter of discretion for the trial judge. State v. Williams, 132 Ariz. 153, 160, 644 P.2d 889 (1982). Expert testimony is unnecessary if the jury is qualified without such testimony to determine the issue intelligently. State v. Chapple, 135 Ariz. 281, 292-93, 660 P.2d 1208 (1983). We do not find Arizona’s application of these standard doctrines to have violated the Sixth Amendment. If the jury believed Connolly, the jury would have found that Pool knew he was police because he used the opprobrious street term for a policeman. If the jury believed Pool himself, the jury would have found that Pool fired after being shot at by Connolly. Without expert testimony the jury would have known that such an approach by Connolly would not constitute proper police procedure. If the jury did not believe Pool, the expert’s testimony would not have helped him. No constitutional error was committed in excluding the testimony. In any event, the expert testimony would have been cumulative and was not “a major part of the attempted defense.” Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir.1983).
Second, as to the reprimand: the observation in it that Connolly’s answer was “inadequate” does not show that he was a liar; the observation merely means that he did not have a good explanation. That the Sheriff’s Department already had a good idea of Connolly’s practice is evident from the arrests he had made in the past and the police communications he used; it is a reasonable inference that the reprimand came about because of the publicity. In ruling on peripheral evidence, a trial court must have a range of discretion within which a mistake, if there is one, is not automatically constitutional error. Police discipline of a police witness may be the only evidence of possible bias and so severe in degree that a motive to lie may be created. Cf. United States v. Garrett, 542 F.2d 23 (6th Cir.1976). In Pool’s case, the existence of the reprimand in Connolly’s file would not have significantly increased his desire to ingratiate himself with his superiors. He had already lost “the comp time.” The reprimand was to be removed from the file within nine months of the trial. Every police officer, it may be supposed, looks better with a certain kind of superior if his testimony leads to a conviction. This possible reason for discounting police testimony is not materially enhanced by the presence of a mild, soon-to-be extinguished censure. Finally, that the encounter with Connolly had led to the reprimand would not have shown that Connolly had a different degree of bias against Pool than the jury already knew that he had. The jury knew from Connolly’s own lips that Pool had put him to flight, driven him into a hole, and led him to shoot up his own vehicle. If the jury did not infer from this story that Connolly could have little love for the defendant, a bureaucratic censure would not have changed the jury’s view of Connolly’s animus. No constitutional right was denied in limiting the cross-examination in this regard. Unlike Davis v. Alaska where a traditional method of impeaching a witness was denied by the trial court, there was here only a remote and peripheral challenge to Connolly’s credibility.
AFFIRMED.
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
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.
Jerry L. CAVEN and Thomas O’Donnell d/b/a States Investment, a partnership, Plaintiffs/Appellees, and Timothy Wayne d/b/a Timothy Wayne and Associates, Intervenor Plaintiff/Appellee/Cross Appellant, v. AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF COLORADO, Defendant/Appellant.
Nos. 85-1517, 85-1551.
United States Court of Appeals, Tenth Circuit.
Jan. 25, 1988.
F. James Donnelly (Charles A. Miller, with him on briefs), of Stutz, Dyer, Miller and Delap, Denver, Colo., for plaintiffs/ap-pellees.
Howard L. Slavin, Denver, Colo., for in-tervenor plaintiff/appellee/cross appellant.
Gregory B. Kanan of Rothgerber, Appel, Powers & Johnson, Denver, Colo. (Thomas M. Domme and Elizabeth T. Wald of Roth-gerber, Appel, Powers & Johnson, Denver, Colo., and John J. Keilbach of Preston, Altman, Parlapiano, Keilbach & Lytle, Pueblo, Colo., with him on briefs), for defendant/appellant.
Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and BRIMMER, District Judge .
Chief Judge, U.S. District Court for the District of Wyoming, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
In this diversity action, American Federal Savings appeals from an award of damages to Jerry Caven for breach of contract. We reverse. Timothy Wayne & Associates appeals from a directed verdict in favor of American Federal Savings in the same action. We affirm.
I.
In 1972, American Federal Savings and Loan Association of Colorado (“American Federal”) agreed to finance the purchase of real estate and the construction of apartments in Pueblo, Colorado. The borrower executed a loan agreement with American Federal, subject to a contemporaneous Deed of Trust that included the following provision regarding transfer of ownership of the property:
“In the event the property securing this loan or any portion thereof is proposed to be sold or conveyed or becomes the subject of any agreement to sell prior to the maturity hereof, the proposed transferee shall be subject to the prior approval of the holder. In such event, the holder shall be provided with documentation to include, but not limited to, copies of: purchase or transfer agreement; management agreement, if any; financial and income statements of the proposed transferee, and a report on the credit standing of the proposed transferee from an approved professional credit reporting agency. The holder shall review the documentation to ascertain transferee’s management skills (or skills of a professional manager to be retained by transferee), credit worthiness and ability to repay this Deed of Trust in accordance with the terms and provisions contained herein. Holder shall have the right to approve any such proposed transferee; however, approval shall not be unreasonably withheld. If, however, such approval is withheld, but not unreasonably, and the transfer, sale or conveyance is nevertheless consummated, the entire indebtedness shall immediately become due and payable at the option of the holder. In any event, no such transfer shall be permitted until construction is completed and a certifícate of occupancy issued.”
R.Vol. I at 11 (emphasis added).
In July, 1977, Jerry Caven purchased the apartments and assumed the American Federal loan, subject to the original Deed of Trust. At the time of the purchase the Deed of Trust was supplemented by a modification agreement between Caven and American Federal. The modification agreement altered the interest rates on the underlying promissory note, provided for a late payment charge and included the following provision under the heading “Transfer of Ownership:”
“If there shall be any change in the ownership of said premises without the written consent of the Association being first obtained, the entire indebtedness secured hereby shall become due and payable at the option of the Association. If the Association consents to such change of ownership, then the current transfer fee shall be due and payable to the association.”
R.Vol. I at 14 (emphasis added). The modification agreement also included the following provision, as the final paragraph:
“This agreement is supplementary to said Note and Deed of Trust. All of the provisions of the Note and Deed of Trust, including the right to declare the principal and accrued interest due for any cause specified therein, shall remain in full force and effect except as specifically herein modified. ...”
R.Vol. I at 14 (emphasis added).
In 1982, Caven sought to sell the apartments. He retained Timothy Wayne & Associates (“Wayne”), the intervenor plaintiff below, as brokers. On August 18, 1982, Caven entered into a contract with Donald Macy and Donald Egan to sell the apartments for a purchase price of $3,160,-000.00. Caven forwarded the contract and financial information concerning the potential purchasers to American Federal. American Federal responded by (1) requesting more detailed financial information, and (2) demanding a substantial increase in the interest rates. Caven countered by arguing that American Federal had no right to increase the interest rate. American Federal disputed that argument and stated that it would not consent to any assumption of the loan and required that the loan be liquidated when the property was sold. As a result, Macy and Egan withdrew from the contract. Caven subsequently sold the apartments on a cash basis to another purchaser for $2,800,000.00 and instituted this diversity action against American Federal for breach of contract. Wayne intervened as a plaintiff alleging breach of contract and tortious interference with contract, claiming as damages his lost commission on the aborted sale to Macy and Egan.
Prior to trial, Caven and American Federal both moved for summary judgment based on their interpretations of the language in the Deed of Trust and modification agreement. Caven argued that the modification agreement did not “specifically modify” the language of the Deed of Trust, and that American Federal had no power to condition an assumption of the loan on an increase in interest rates. American Federal argued that the provision in the modification agreement was an “absolute due on sale clause” that replaced the earlier provision and gave American Federal the power to disapprove an assumption of the loan for any reason.
The district court below granted partial summary judgment to Caven, holding that the language in the modification agreement did not specifically modify “either the procedural aspects of how the information shall be presented to [American Federal], nor the fact that approval shall not be [unreasonably withheld. It specifically does not affect those provisions.” R.Vol. IV at 6.
Trial proceeded to a jury to determine whether American Federal had complied with the provisions of the Deed of Trust. Caven’s breach of contract claim went to the jury and the jury returned a verdict in Caven’s favor for $300,000.00. The trial court granted American Federal’s motion for a directed verdict against Wayne, holding that, under Colorado law, he could not succeed on the interference with contract claim. American Federal appeals from the trial court’s partial summary judgment for Caven, from the judgment entered for Ca-ven, and from the denial of its motion for judgment notwithstanding the verdict. Wayne appeals from the directed verdict against him.
II.
We turn first to the partial summary judgment granted to Caven. “When reviewing a grant of summary judgment, this court must examine the record to determine whether any genuine issue of material fact pertinent to the ruling remains and, if not, whether the substantive law was correctly applied.” Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986) (citations omitted). The parties do not dispute the material facts, thus we are left to determine if the district court correctly applied the substantive law. “In reviewing the trial court’s construction of the contract, it should be noted that ordinarily the construction of a contract is a question of law for the court.” Resort Car Rental Sys., Inc. v. Chuck Ruwart Chevrolet, Inc., 519 F.2d 317, 320 (10th Cir.1975). See also Union Rural Elec. Ass’n, Inc. v. Public Util. Comm., 661 P.2d 247, 251 (Colo.1983) (“Interpretation of contract language is generally a question of law.”); Stroh-Mc Investments v. Bowens, 725 P.2d 33, 34 (Colo.Ct.App.1986) (“Interpretation of the language of a contract is a question of law for the court.”). In reviewing a question of law, we are not bound by the district court’s conclusions. See Energy Oils, Inc. v. Montana Power Co., 626 F.2d 731, 734 (9th Cir.1980); C. Wright and A. Miller, Federal Practice and Procedure, Civil § 2588, at 750 (1971) (“the interpretation and the construction of written contracts are matters of law and freely reviewable as such”). See also Reynolds v. Farber, 40 Colo.App. 467, 577 P.2d 318, 320 (1978) (“Since the construction of a written instrument is a question of law, this court is not bound by the trial court’s interpretation.”).
In this diversity action, we look initially to Colorado law for guidance in interpreting this contract. The parties cite a variety of rules and principles of contract construction used in Colorado. No decision by the Colorado courts directs us to only one permissible conclusion in the interpretation of the specific language of this contract. However, we find certain principles helpful. First, where “the language used is plain, clear, and no absurdity is involved, we must declare and enforce the instrument as written.” Fuller & Co. v. Mountain States Investment Builders, 37 Colo.App. 201, 546 P.2d 977, 980 (1975). Second, “[w]e must adopt a construction of the agreement that will give effect to all of its provisions.” Union Rural, 661 P.2d at 252. See also Oriental Refining Co. v. Hollenbeck, 125 Colo. 77, 240 P.2d 913, 916 (1952) (“each and every part and portion of a contract is to be given effect, if possible”). Finally, the parties have not cited, nor have we found, any clear statement of the Colorado courts on the effect of a modification agreement, but we believe the following statement by the Utah Supreme Court correctly states general contract law relating to modification agreements:
“It is well-settled law that the parties to a contract may, by mutual consent, alter all or any portion of that contract by agreeing upon a modification thereof. Where such a modification is agreed upon, the terms thereof govern the rights and obligations of the parties under the contract, and any pre-modification contractual rights which conflict with the terms of the contract as modified must be deemed waived or excused.”
Rapp v. Mountain States Telephone and Telegraph Co., 606 P.2d 1189, 1191 (Utah 1980) (footnotes omitted). This same principle was stated by the District of Columbia Court of Appeals in Egan v. McNamara, 467 A.2d 733, 740 (D.C.1983): “a contract containing a term inconsistent with a term of an earlier contract between the same parties regarding the same subject matter should be interpreted to rescind the inconsistent term in the earlier contract.” We believe that the Colorado Supreme Court would apply those general principles.
With those principles in mind, we turn to the language of the modification agreement. The terms of that agreement are plain. “If there shall be any change in the ownership ... without the written consent of [American Federal] being first obtained, the entire indebtedness secured hereby shall become due and payable at the option of [American Federal].” R.Vol. I at 14 (emphasis added). The modification agreement includes no conditions or limitations on American Federal’s right to disapprove an assumption of the loan. In our view, this language “specifically modifies” the procedural requirements and the limitation of the Deed of Trust providing that approval of the transferee may not be “unreasonably withheld.”
In addition to the plain language of the agreement, we find two arguments persuasive. First, the parties executed a modification agreement. We assume that they wanted to change the prior terms of their contract. See South Florida Beverage Corp. v. Figueredo, 409 So.2d 490, 496 (Fla.Dist.Ct.App.1981) (“It may be presumed, however, than an amendment to an agreement is designed to serve some useful function, and its existence is strong evidence, therefore, that the contract was changed from what the parties believed and intended was provided before.”), cert. denied, 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982). The interpretation urged by Caven, and adopted by the district court, adds nothing to the terms of the original Deed of Trust and renders the cited portion of the modification agreement meaningless. We do not believe the parties intended to adopt modifying language without any force. The second argument is closely related. Under Colorado law, we are urged to give effect to all provisions of a contract. Union Rural, 661 P.2d at 252. This principle is violated by an interpretation of the agreement that renders the transfer of ownership provisions in the modification agreement without effect. Thus, we face conflicting provisions in the original contract and modification. We choose to enforce the provision in the later agreement, which is by its very nature, intended to modify the earlier agreement. Accordingly, we conclude that American Federal had the absolute right and power to call the loan to Caven due and payable upon any transfer, and it was entitled to a summary judgment to that effect.
III.
Colorado recognizes the tort of intentional interference with contractual relations. Memorial Gardens, Inc. v. Olympian Sales & Management Consultants, Inc., 690 P.2d 207, 210 (Colo.1984). At trial, Wayne argued that American Federal induced Macy and Egan to breach the purchase contract with Caven, resulting in the loss of a real estate commission to Wayne.
Colorado relies on the provisions of the Restatement (Second) of Torts §§ 766, 767 (1977) to define the elements of that tort. Trimble v. City and County of Denver, 697 P.2d 716, 725-26 (Colo.1985); Memorial Gardens, 690 P.2d at 210. Specifically, the Colorado Supreme Court has held that a party may not be held liable for the intentional interference with contractual relations unless that party’s conduct was “improper.” Trimble, 697 P.2d at 726; Memorial Gardens, 690 P.2d at 210.
At the close of the trial below, the district court granted American Federal’s motion for a directed verdict against Wayne, holding that, as a matter of law, Wayne was unable to show that American Federal’s actions were improper. Normally, we would review the directed verdict viewing the evidence and all reasonable inferences that can be drawn from that evidence most favorably to the non-moving party. See Brown v. Reardon, 770 F.2d 896, 902 (10th Cir.1985). In this case, however, we have already determined that American Federal had an absolute right to insist on an increase in the interest rate under the terms of the modification agreement. That decision renders Wayne’s claim and appeal moot. For under Colorado law, “[n]o liability attaches [for intentionally interfering with contractual relations] where the act claimed to have caused the breach is undertaken in the exercise of an absolute right, that being conduct which the actor has a definite legal right to engage in without qualification.” Radiology Professional Corp. v. Trinidad Area Health Ass’n, Inc., 39 Colo.App. 100, 565 P.2d 952, 954 (1977) (citation omitted).
The district court’s orders granting partial summary judgment for Caven, denying summary judgment for American Federal, and denying American Federal’s motion for judgment notwithstanding the verdict are REVERSED. The district court’s order granting a directed verdict against Wayne is AFFIRMED.
. In 1980, the parties signed a second modification agreement. American Federal extended the payment dates on a personal loan to Caven, and in return, Caven agreed to an increase in the interest rate on the underlying loan. For purposes of this dispute, the relevant language of the second agreement is identical and this opinion will reference only one "modification agreement."
. On appeal, Caven advances several creative interpretations of the provision designed to give it an effect consistent with the Deed of Trust. For example, we are urged to read it as a “gap filling" provision, effective only in the case where the borrower transfers the property without notice to the lender. We have considered this, and other arguments, carefully and find that the plain language of the agreement cannot support the reading urged by Caven.
. Restatement (Second) of Torts § 767 (1977) specifies the factors to be considered in determining whether an actor’s conduct in intentionally interfering with a contract is improper:
(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 social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
sc_lcdispositiondirection | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
THOMAS JEFFERSON UNIVERSITY, dba THOMAS JEFFERSON UNIVERSITY HOSPITAL v. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES
No. 93-120.
Argued April 18, 1994
Decided June 24, 1994
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Scalia, and Souter, JJ., joined. Thomas, J., filed a dissenting opinion, in which Stevens, O'Connor, and Ginsburg, JJ., joined, post, p. 518.
Ronald N. Sutter argued the cause for petitioner. On the briefs were James M. Gaynor, Jr., and Amy E. Hancock.
Amy L. Wax argued the cause for respondent. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Robert V. Zener, Robert D. Kamenshine, Harriet S. Rabb, Darrel J Grinstead, Henry R. Goldberg, and Thomas W. Coons
Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Diane M. Signoracci, Catherine M. Ballard, Richard A Cordray, and Simon B. Karas, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Charles M. Oberly III of Delaware, Richard P. Ieyoub of Louisiana, Hubert H. Humphrey III of Minnesota, John P. Arnold of New Hampshire, G. Oliver Koppell of New York, Ernest D. Preate, Jr., of Pennsylvania, Jan Graham of Utah, and James S. Gilmore III of Virginia; and for the American Hospital Association et al. by Ronald N. Sutter, Mary Susan Philp, and Joseph A Keyes, Jr.
Justice Kennedy
delivered the opinion of the Court.
Although Medicare reimburses provider hospitals for the costs of certain educational activities, the program is forbidden by regulation from “participating] in increased costs resulting from redistribution of costs from educational institutions ... to patient care institutions.” 42 CFR § 413.85(c) (1993) (emphasis added). In denying reimbursement for the disputed costs in this case, the Secretary of Health and Human Services interpreted this provision to bar reimbursement of educational costs that were borne in prior years not by the requesting hospital, but by the hospital’s affiliated medical school. The dispositive question is whether the Secretary’s interpretation is a reasonable construction of the regulatory language. We conclude that it is.
I
A
Established in 1965 under Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. § 1395 et seq. (1988 ed. and Supp. IV), Medicare is a federally funded health insurance program for the elderly and disabled. Subject to a few exceptions, Congress authorized the Secretary of Health and Human Services (Secretary) to issue regulations defining reimbursable costs and otherwise giving content to the broad outlines of the Medicare statute. § 1395x(v)(l)(A). That authority encompasses the discretion to determine both the “reasonable cost” of services and the “items to be included” in the category of reimbursable services. Ibid. Acting under the statute, the Secretary, by regulation, permits reimbursement for the costs of “approved educational activities” conducted by hospitals. 42 CFR § 413.85(a)(1) (1993). The regulations define “approved educational activities” as “formally organized or planned programs of study usually engaged in by providers in order to enhance the quality of patient care.” § 413.85(b).
Graduate medical education (GME) programs are one category of approved educational activities. GME programs give interns and residents clinical training in various medical specialties. Because participants learn both by treating patients and by observing other physicians do so, GME programs take place in a patient care unit (most often in a teaching hospital), rather than in a classroom. Hospitals are entitled to recover the “net cost” of GME and other approved educational activities, a figure “determined by deducting, from a provider’s total costs of these activities, revenues it receives from tuition.” § 413.85(g). A hospital may include as a reimbursable GME cost not only the costs of services it furnishes, but also the costs of services furnished by the hospital’s affiliated medical school. § 413.17(a).
That brings us to the regulation here in question. Section 413.85(c) sets forth conditions governing the reimbursement of educational activities. In a sentence referred to by the parties as the “anti-redistribution” principle, the regulation provides that “[although the intent of the [Medicare] program is to share in the support of educational activities customarily or traditionally carried on by providers in conjunction with their operations, it is not intended that this program should participate in increased costs resulting from redistribution of costs from educational institutions or units to patient care institutions or units.” Ibid. In a portion of the regulation known as the “community support” principle, § 413.85(c) also states that the costs of educational activities “should be borne by the community,” but that “[u]ntil communities undertake to bear these costs, the [Medicare] program will participate appropriately in the support of these activities.” Ibid.
B
Thomas Jefferson University Hospital (Hospital) is a 700-bed teaching hospital in Philadelphia, Pennsylvania. The Hospital has been a qualified Medicare provider since the program took effect in 1966. Petitioner Thomas Jefferson University (University) is a private, not-for-profit educational institution that operates the Hospital and other entities, including the Jefferson Medical College (Medical College). As a teaching facility, the Hospital provides Medicare-approved GME programs for postgraduate interns and residents in numerous medical specialties. The programs are conducted at the Hospital by Medical College faculty. Because of their common ownership by the University, the Hospital and the Medical College are considered affiliated or “related” organizations under Medicare regulations. 42 CFR § 413.17(a) (1993). As a result, the Hospital is entitled to reimbursement for all eligible patient-care, educational, and administrative costs carried on the books of the Medical College. Ibid.
Nevertheless, for reasons not clear from the record, the Hospital did not seek reimbursement for any GME costs during the first eight years of the Medicare program’s existence. During the next 10 years, however, from 1974 through 1983, the Hospital sought and received reimbursement for three categories of salary-related GME costs: (1) salaries paid by the Hospital to Medical College faculty for services rendered to the Hospital’s Medicare patients; (2) salaries paid by the Hospital to residents and interns; and (3) funds transferred internally from the Hospital to the Medical College as payment for faculty time devoted to the Hospital’s GME program. The Hospital did not seek reimbursement during that period for its other, non-salary-related GME costs (namely, the costs of administering the Hospital’s GME programs), and those costs were borne by the Medical College.
In 1983, Congress adopted a more restrictive method of reimbursing hospitals for inpatient medical services, see 42 U. S. C. § 1395ww(d) (1988 ed. and Supp. IV), but it retained the more lenient method of reimbursement for medical education costs. 42 U. S. C. § 1395ww(a)(4) (1988 ed., Supp. IV). In 1984, when the new cost reimbursement regime was implemented, the Hospital reviewed its claim for costs associated with its GME programs to determine whether it was identifying all costs eligible for reimbursement. This review resulted in an increased claim reflecting clerical costs incurred by the Medical College for activities associated with its GME programs.
The following year, in an effort to further refine its cost allocation techniques, the Hospital retained an accounting firm to compute the Hospital’s total GME costs for fiscal year 1985, the year here in question. Fiscal year 1985 later became especially significant because, under a new reimbursement scheme enacted in 1986, it is considered the Hospital’s base period, to which all later claims for GME cost reimbursement will be tied. See 42 U. S. C. § 1395ww(h). After completing the cost study, the accounting firm reported that the Hospital had incurred GME program costs totaling $8.8 million, a figure that included direct and indirect administrative costs not previously claimed by the Hospital. The report was submitted to petitioner’s assigned fiscal intermediary, whose function is to review petitioner’s annual cost reports and to calculate the appropriate level of reimbursement under applicable statutes and regulations. See 42 CFR §405.1803 (1993). Although petitioner sought reimbursement for the full $8.8 million, the fiscal intermediary allowed only those salary-related costs that had been reimbursed earlier (after adjustment for inflation). The fiscal intermediary disallowed reimbursement for all nonsalaryrelated GME costs that the report identified (amounting to approximately $2.9 million). App. to Pet. for Cert. 10a. Petitioner then appealed to the Provider Reimbursement Review Board, an intermediate appellate tribunal within the Department, which reversed the decision of the fiscal intermediary in part and allowed reimbursement for all of the GME costs documented in the cost study.
The Secretary, acting through the Administrator of the Health Care Financing Administration, modified the Board’s decision and reinstated the fiscal intermediary’s ruling. The Secretary concluded that the anti-redistribution clause of § 413.85(c) prohibits the shift of approved educational costs from an educational unit to a patient-care unit, even if the educational activities for which reimbursement is sought are the kind of activities traditionally engaged in by Medicare providers. Id., at 35a. Since the nonsalary GME costs here in issue were borne in prior years by the Medical College, the Secretary ruled that reimbursement of these costs would constitute an impermissible “redistribution of costs” under § 413.85(c). Ibid.
The Secretary also relied on the community support language in § 413.85(c) as an independent ground for denying the requested reimbursement. According to the Secretary, this language prohibits Medicare reimbursement for educational activities that “have been historically borne by the community.” Ibid. That the Hospital had failed to seek reimbursement for the disputed costs in previous years was, in the Secretary’s view, “evidence of the communit[y’s] support for these activities.” Ibid. “To allow the community to withdraw that support and pass these costs to the Medicare program” would violate the community support principle and would “encourage the community to abdicate its commitment to education to an insurance program intended to provide care for the elderly.” Ibid.
Petitioner filed a petition for review in the District Court seeking reimbursement for the $2,861,247 in GME costs that the Secretary had disallowed. Id., at 10a. On cross-motions for summary judgment, the court ruled in the Secretary’s favor, accepting her interpretation of the anti-redistribution and community support clauses as a reasonable construction of § 413.85(c). Thomas Jefferson Univ. v. Sullivan, CCH Medicare & Medicaid Guide ¶ 40,294, p. 30,959 (ED Pa. 1992). The Third Circuit affirmed without opinion, judgment order reported at 993 F. 2d 879 (1993), thereby creating a conflict with the decision of the Sixth Circuit in Ohio State Univ. v. Secretary, Dept. of Health and Human Services, 996 F. 2d 122 (1993), cert. pending, No. 93-696, concerning the validity of the Secretary’s interpretation of the anti-redistribution clause. We granted certiorari, 510 U. S. 1039 (1994), and now affirm.
II
Petitioner challenges the Secretary’s construction of § 413.85(c) under the Administrative Procedure Act (APA), 5 U. S. C. § 551 et seq. The APA, which is incorporated by the Social Security Act, see 42 U. S. C. § 1395oo(f )(1), commands reviewing courts to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). We must give substantial deference to an agency’s interpretation of its own regulations. Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 150-151 (1991); Lyng v. Payne, 476 U. S. 926, 939 (1986); Udall v. Tallman, 380 U. S. 1, 16 (1965). Our task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency’s interpretation must be given “‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Ibid, (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). In other words, we must defer to the Secretary’s interpretation unless an “alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation.” Gardebring v. Jenkins, 485 U. S. 415, 430 (1988). This broad deference is all the more warranted when, as here, the regulation concerns “a complex and highly technical regulatory program,” in which the identification and classification of relevant “criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.” Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 697 (1991).
Petitioner challenges the Secretary’s construction of both the anti-redistribution language and the community support language of § 413.85(c). Because we conclude that the Secretary’s interpretation of the anti-redistribution clause is neither “ ‘plainly erroneous [n]or inconsistent with the regulation,’ ” Tollman, supra, at 16-17, and because its application suffices to deny reimbursement of the disputed costs in this case, we need not pass upon the Secretary’s interpretation of the community support language.
The anti-redistribution clause is contained in the final sentence of § 413.85(c), which states:
“Although the intent of the [Medicare] program is to share in the support of educational activities customarily or traditionally carried on by providers in conjunction with their operations, it is not intended that this program should participate in increased costs resulting from redistribution of costs from educational institutions or units to patient care institutions or units.” (Emphasis added.)
The meaning of this sentence is straightforward. Its introductory clause defines the scope of educational activities for which reimbursement may be sought: To be eligible for reimbursement, the activity must be one that is “customarily or traditionally carried on by providers in conjunction with their operations.” It is the language that follows, however, that imposes the relevant restriction on cost redistribution. The second clause provides that, notwithstanding the activity for which reimbursement is sought, the Medicare program will not participate in the “redistribution of costs from educational institutions or units to patient care institutions or units.”
The Secretary’s interpretation gives full effect to both clauses of the relevant sentence. The Secretary interprets the regulation to allow reimbursement for costs of educational programs traditionally engaged in by hospitals, but, at the same time, to deny reimbursement for “cost[s] previously incurred and paid by a medical school.” Brief for Respondent 26 (emphasis deleted); see also § 413.85(b) (defining “approved educational activities” that are eligible for reimbursement as “programs of study usually engaged in by providers in order to enhance the quality of patient care”). The Secretary’s reading is not only a plausible interpretation of the regulation; it is the most sensible interpretation the language will bear.
The circumstance addressed by the anti-redistribution clause is a hospital’s submission of “increased costs” arising from approved educational activities. The regulation provides, in unambiguous terms, that the “costs” of these educational activities will not be reimbursed when they are the result of a “redistribution,” or shift, of costs from an “educational” facility to a “patient care” facility, even if the activities that generated the costs are the sort “customarily or traditionally carried on by providers in conjunction with their operations.” § 413.85(c). The Secretary’s reliance on a hospital’s own historical cost allocations, along with those of an affiliated medical school, is a simple and effective way of determining whether a prohibited “redistribution of costs” has occurred. Indeed, one would be hard pressed to come up with an alternative method to identify the shifting of costs from one entity to another.
Petitioner advances three separate arguments for not deferring to the Secretary’s interpretation of the anti-redistribution clause. None is persuasive.
First, petitioner asserts that the “clear meaning” of the anti-redistribution clause is to allow reimbursement for the costs of activities traditionally carried on by hospitals (e. g., clinical training of residents and interns), but to deny reimbursement for costs incurred in activities traditionally carried on by educational institutions (e. g., classroom training). Pet. for Cert. 14. In other words, according to petitioner, the redistribution that is prohibited is the redistribution of activities, not the redistribution of costs. Brief for Petitioner 20.
This argument is mistaken, for it ignores the second clause of the critical sentence, which refers, on its face, to the “redistribution of costs,” not the “redistribution of activities.” The term “costs,” moreover, is used without condition. Nothing in the plain language suggests that the prohibition on “redistribution of costs” is limited to the costs of certain activities (such as classroom instruction) carried on by an educational unit. The clear inference from the language is that the shift of any reimbursable costs from an “educational institutio[n] or uni[t]” to a “patient care institutio[n] or uni[t]” is prohibited. The Secretary’s interpretation of the anti-redistribution principle is thus far more consistent with the regulation’s unqualified language than the interpretation advanced by petitioner. But even if this were not so, the Secretary’s construction is, at the very least, a reasonable one, and we are required to afford it “controlling weight.” Bowles v. Seminole Rock & Sand Co., 325 U. S., at 414.
Second, petitioner argues that the Secretary has been inconsistent in her interpretation of the anti-redistribution provision. While it is true that an agency’s interpretation of a statute or regulation that conflicts with a prior interpretation is “ ‘entitled to considerably less deference’ than a consistently held agency view,” INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987) (quoting Watt v. Alaska, 451 U. S. 259, 273 (1981)), that maxim does not apply here because petitioner fails to present persuasive evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner.
In an attempt to find an inconsistency, petitioner points to a 1978 internal operating memorandum issued by the Health Care Financing Administration (HCFA) that addressed the reimbursement of costs incurred by medical schools affiliated with providers. Intermediary Letter No. 78-7 (Feb. 1978), App. to Pet. for Cert. 64a-66a. The intermediary letter detailed various categories and amounts of educational expenses incurred by affiliated medical schools that might be allowable to providers, but did not mention the anti-redistribution limitation. Petitioner’s attempt to infer from that silence the existence of a contrary policy fails because the intermediary letter did not purport to be a comprehensive review of all conditions that might be placed on reimbursement of educational costs. By its own terms, the intermediary letter attempted to review only a “number of situations” relating to the reimbursement of educational costs — namely, “situations raising] questions about the reasonableness of [medical school faculty] costs as allowable hospital costs and the appropriateness of the bases used in allocating them to the hospital.” Id., at 64a. It is not surprising, then, that the letter did not address the anti-redistribution principle, and the mere failure to address it here hardly establishes an inconsistent policy on the part of the Secretary.
Likewise, contrary to the dissent’s suggestion, post, at 520-522, the mere fact that in 1974 a fiscal intermediary may have allowed reimbursement to petitioner for GME costs that appear to have violated the anti-redistribution clause does not render the Secretary’s interpretation of that clause invalid. For even if petitioner could show that such allowance was approved by — or even brought to the attention of— the Secretary or her designate at the time, “[t]he Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation.” Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). And under the circumstances of this case, “where the agency’s interpretation of [its regulation] is at least as plausible as competing ones, there is little, if any, reason not to defer to its construction.” Id., at 417.
Finally, petitioner contends that we should ignore the Secretary’s interpretation of the anti-redistribution clause because the language of the regulation is “precatory” and “aspirational” in nature, and thus lacking in operative force. See Brief for Petitioner 31-32. We do not lightly assume that a regulation setting forth specific limitations on the reimbursement of costs under a federal program is devoid of substantive effect. That is especially so when, as here, the language in question speaks not in vague generalities but in precise terms about the conditions under which reimbursement is, and is not, available. Whatever vagueness may be found in the community support language that precedes it, the anti-redistribution clause lays down a bright line for distinguishing permissible from impermissible reimbursement: Educational costs will not be reimbursed if they are the result of a “redistribution of costs from educational institutions or units to patient care institutions or units.” § 413.85(c). The Secretary was well within her discretion to interpret this language as imposing a substantive limitation on reimbursement.
In sum, the Secretary’s construction qf the anti-redistribution principle is faithful to the regulation’s plain language, and the application of this language suffices to bar reimbursement of the costs claimed in this case. For these reasons, we affirm the judgment of the Court of Appeals.
It is so ordered.
Justice Thomas,
with whom Justice Stevens, Justice O’Connor, and Justice Ginsburg join, dissenting.
The Court’s opinion reads as if this were a case of model agency action. As the Court views matters, 42 CFR § 413.85(c) (1993) is “unambiguous,” ante, at 514, and respondent Secretary of Health and Human Services (Secretary) has always been “faithful to the regulation’s plain language,” ante this page. That plain language, according to the Court, required the Secretary to disallow the reimbursement petitioner sought. The Court’s account is hardly an accurate portrayal of this case. When the case is properly viewed, I cannot avoid the conclusion that the Secretary’s construction of § 413.85(c) runs afoul of the plain meaning of the regulation and therefore is contrary to law, in violation of the Administrative Procedure Act, 5 U. S. C. § 706(2)(A). I therefore respectfully dissent.
I
The Court holds that § 413.85(c) has substantive content, reasoning that “the language in question speaks not in vague generalities but in precise terms about the conditions under which reimbursement is, and is not, available.” Ante, at. 517. In my view, however, § 413.85(c) is cast in vague aspirational terms, and it strains credulity to read the regulation as imposing any restriction on the reimbursability of the costs of graduate medical education (GME) or other approved educational expenses. On the contrary, subsection (c) appears to be nothing more than a precatory statement of purpose that imposes no substantive restrictions.
Subsection (c), in stark contrast to the remainder of §413.85, reads more like a preamble than a law. See ante, at 507-508, n. 1 (quoting § 413.85(c)). In the community support portion of § 413.85(c), the Secretary praises the benefits of approved educational programs and expresses a belief that communities “should” pay for such programs. The subsection then announces the Secretary’s intention to support such activities “appropriately,” limited only by the vague suggestion that at some point in the future a restructuring of fiscal priorities at the “community” level may obviate the need for federal support. The anti-redistribution principle is no less precatory than the community support principle. It states two “intent[ions]”: first, to pay for the “customar[y] and traditional]” educational activities of Medicare providers, and, second, to avoid reimbursing expenses that should be borne by educational institutions affiliated with teaching hospitals. I would not permit the Secretary to transform by “interpretation” what self-evidently are mere generalized expressions of intent into substantive rules of reimbursability. Cf. Stinson v. United States, 508 U. S. 36, 45 (1993) (an agency’s interpretation of its own regulation cannot be sustained if “ ‘plainly erroneous or inconsistent with the regulation’ ”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). See also Udall v. Tallman, 380 U. S. 1, 16-17 (1965).
We rejected a similar attempted transformation of precatory language in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). There, we addressed a claim that the “bill of rights” of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U. S. C. § 6010 (1976 ed. and Supp. Ill), created substantive rights in favor of the mentally retarded. The bill of rights provided, in part, that such persons “have a right to appropriate treatment, services, and habitation” and that state governments “have an obligation to assure that public funds are not provided to any [noncomplying] institutio[n].” §§6010(1), (8). We held that the bill of rights did not have substantive effect: “§ 6010, when read in the context of other more specific provisions of the Act, does no more than express a congressional preference for certain kinds of treatment. It is simply a general statement of ‘findings’ and, as such, is too thin a reed to support the rights and obligations read into it by the court below.” 451 U. S., at 19. Even though Pennhurst did not involve an agency regulation, its textual analysis suggests that it is unreasonable to give substantive effect to precatory, aspirational language — as would the Secretary’s construction of 42 CFR § 413.85(c) (1993). Cf. EEOC v. Arabian American Oil Co., 499 U. S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in judgment) (explaining that “deference is not abdication, and it requires us to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ”).
Interestingly enough, for the first two decades of the Medicare program’s operation, the Secretary’s fiscal intermediaries, with her acquiescence (if not approval), gave § 413.85(c) precisely the same substantive effect as I would — none. During that entire period, the Secretary never invoked the subsection to deny reimbursement for previously unreimbursed costs, and providers were actually reimbursed for such costs despite § 413.85(c). Indeed, contrary to the Court’s baffling assertion that “petitioner fails to present persuasive evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner,” ante, at 515, one need look no further than petitioner’s brief, see Brief for Petitioner 21-24, to find evidence of such interpretive inconsistency as to both the anti-redistribution and community support principles.
Petitioner received no Medicare reimbursement for any GME costs from 1966 to 1973. Even though the anti-redistribution and community support principles were in effect for that entire period, see ante, at 507-508, n. 1, petitioner was awarded reimbursement for the first time in 1974, for salary-related GME costs. Because those GME costs were not paid for by Thomas Jefferson University Hospital (Hospital) prior to 1974, even the Secretary’s opinion below finds, as a matter of fact, that they were borne, to a large extent, by Jefferson Medical College (Medical School) during that period. Cf. App. to Pet. for Cert. 32a (identifying public educational grants to the Medical School and Medical School tuition as sources for funding the Hospital’s pre-1974 GME activities). Also, the funding for those costs that came from sources other than the Medical School (namely, hospital fees from charges to non-Medicare beneficiaries, see ibid.) did not come from Medicare and therefore constituted “community support.” See App. to Pet. for Cert. 18a (the Secretary “views community support as any source of funding other than the Medicare program”).
Yet under the Secretary’s present interpretation of § 413.85(c), petitioner should never have received any GME cost reimbursement because it had not obtained such reimbursement from the beginning of the Medicare program. To the extent the Hospital’s GME costs were previously borne by the Medical School, providing petitioner reimbursement for those costs violated the anti-redistribution principle, as presently construed. See ante, at 513 (“The Secretary interprets the regulation ... to deny reimbursement for ‘costs previously incurred and paid by a medical school’”) (editorial revisions omitted). Indeed, the Provider Reimbursement Review Board (PRRB) explicitly recognized this fact, finding that, on the fiscal intermediary’s interpretation of “redistribution” (adopted by the Secretary below), “[i]n 1974, the [Hospital] commenced shifting costs ... to the Medicare program” and that “[additional cost shifting occurred in 1984 when certain clerical costs of the Medical School were included in the [Hospital’s] cost report.” App. to Pet. for Cert. 50a. Similarly, reimbursing petitioner for GME costs violated the community support principle, to the extent funding for such costs had been available previously from non-Medicare sources. See ante, at 511 (where community support has been received, § 413.85(c) “prohibits Medicare reimbursement”). Thus, the Court’s statement that there is no “evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner,” ante, at 515, appears to be wishful thinking: Petitioner has been routinely granted reimbursement which it should have been denied under § 413.85(c), if the Secretary’s current interpretation is correct.
I think it reasonable to conclude that in reimbursing petitioner since 1974 for GME costs not reimbursed from the inception of the Medicare program, the Secretary acted on the basis of an interpretation of § 413.85(c) that attached no significance to a Medicare provider’s failure in prior years to be reimbursed for, or to carry on its books, eligible educational costs. This conclusion has significant support in the Secretary’s roughly contemporaneous pronouncements. Cf. Lyng v. Payne, 476 U. S. 926, 939 (1986); M. Kraus & Bros., Inc. v. United States, 327 U. S. 614, 622 (1946) (opinion of Murphy, J.). In 1978, for example, the Secretary advised fiscal intermediaries that reasonable GME costs incurred by a related medical school are “allowable hospital costs,” Intermediary Letter No. 78-7 (Feb. 1978), without even mentioning either the community support or the anti-redistribution principle as potential limitations on its construction. App. to Pet. for Cert. 64a. The letter’s explicit statement that the Secretary therein addressed the “appropriateness” of “allocating [educational costs] to the hospital [in question],” ibid., demonstrates the inaccuracy of the Court’s suggestion that the letter addressed topics entirely unrelated to the anti-redistribution principle, ante, at 515-516; the “appropriateness” of allocating costs from a medical school to its affiliated hospital is precisely what the anti-redistribution principle governs, to the extent it has substantive effect at all. See 42 CFR § 413.85(c) (1993).
Moreover, in 1982, the Secretary answered a query from a fiscal intermediary concerning the relationship between the anti-redistribution principle and Intermediary Letter 78-7 with the statement that “allocation of costs to a hospital from a related medical school is governed by Intermediary Letter 78-7.” App. 25. The Court makes much of the fact that the 1982 memorandum did not explicitly mention the anti-redi
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
songer_genapel2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Irving W. DOBSON, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant-Appellee.
No. 11805.
United States Court of Appeals Seventh Circuit.
Oct. 16, 1957.
Rehearing Denied Nov. 25, 1957.
Robert J. Kenney and John J. Naughton, Chicago, III, Henslee, Monek & Murray, Chicago, 111., of counsel, for appellant.
Edward J. Wendrow and Winston, Strawn, Smith & Patterson, Chicago, 111., George B. Christensen, Gerard E. Grashorn, Chicago, 111., of counsel, for appellee.
Before LINDLEY, SCHNACKENBERG and PARKINSON, Circuit Judges.
LINDLEY, Circuit Judge.
Plaintiff, an employee of defendant, brought suit in the district court, seeking to recover damages for personal injuries. He charged that, in violation of the duties which the railroad owed him, it (a) hauled a car “with a coupler which would not uncouple”, contrary to the requirements of See. 2 of the Safety Appliance Act (45 U.S.C.A. § 2); (b) negligently failed to furnish him with a reasonably safe place in which to work; and (c) negligently allowed an iron bar to remain on the roadway. During the trial, plaintiff withdrew charge (c), but insists here that the essence of that charge remained in the case by' inclusion in the more general charge (b). Defendant brought General Motors into court by a third party complaint asking indemnification from that party for any damages which plaintiff might recover from defendant.
From a judgment upon a verdict for defendant, plaintiff appeals. He admits that the proof presented a jury issue and does not contend that the evidence does not sustain the verdict, but insists that he was prejudiced in the trial by these errors on the part of the trial court: (1) giving an erroneous instruction; (2) submitting an improper special interrogatory to the jury; (3) unreasonably restricting plaintiff’s evidence as to an unsafe place to work to a period of “three to four months” prior to the accident and, as to his physician’s testimony, in unduly limiting it. Though the sufficiency of the evidence to support the verdict is not questioned, some consideration of the facts is necessary to a correct determination of whether the trial court committed prejudicial error in any of the respects named.
On December 19, 1952, plaintiff was attempting to uncouple one box car from others, in order to shunt it down a side switch track, branching off of a main lead track, on a General Motors’ plant in Detroit, Michigan. While so engaged, just as he began to try to make the uncoupling, or just before he began that operation, or, just as he was accomplishing it, he claims to have stepped on a round iron bar, which, he says, turned, causing him to twist and wrench his back, seriously, as he says, slightly, as defendant insists. Obviously, in our inquiry as to alleged errors, the extent of his injuries is unimportant.
As opposed to his testimony at the trial that he unsuccessfully endeavored to work the coupling, before he stepped on the iron bar or bolt, defendant offered in evidence two documents signed by plaintiff; first, his accident report, in his own handwriting, and, second, his more detailed report delivered to defendant January 16, 1953. In the first, he stated “was working lead * * * cars and reached to pull pin when slipped on piece of scrap twisting myself around and hurting back.” The report contains nothing about any defect in cars or coupling apparatus. In the statement made January 16,1953, plaintiff said that he was “going to cut off one car” and that just as he was pulling the pin he “stepped on a piece of scrap iron, round like a bolt, and about 5 or 6 inches long -x- * This bolt or whatever it was rolled under my foot and twisted me around.” He had hold of the coupling operating lever, otherwise he “would have gone down * * * there was nothing defective about car I was pulling pin on. Operating lever was O.K.” As to the piece of iron, there was no proof that defendant or anyone else, knew, actually or constructively, of its presence, except that plaintiff testified that he had complained about debris on or about the switch tracks. This was denied. It is obvious from these facts that a sharp controversy existed, which has been settled by the verdict.
The instruction of which complaint is made reads: “The Court instructs the jury that, if you find from the evidence that prior to the time plaintiff was injured he attempted to operate the cutting lever on the car in question in the usual and customary manner, but did not succeed in uncoupling the car pri- or to the time he stepped on the metal bar, if any, but if you further find that his failure, if any, to operate the cutting lever was not a proximate cause, in whole or in part, of plaintiff’s injuries, then you must find defendant, Grand Trunk Western Railroad Company, not guilty as to plaintiff’s claim under the Safety Appliance Act.” This instruction, says plaintiff, “directed” a verdict for defendant as to the charge of violation of the Safety Appliance Act. We think it obvious that the charge is not reasonably susceptible of any such construction. It purported only to advise the jury that, even if there was a defective appliance, if the jury found from the evidence that the defect was not the proximate cause of or had no causal connection with the accident, then, the jury could not properly find a verdict in plaintiff’s favor, insofar as the Safety Appliance Act was concerned. No one can question this as a correct proposition of law. Surely upon the conflicting statements of plaintiff himself, there was a serious controversy as to whether there was any appliance defect, or if so, that it had any causal connection with the accident. If such a defect existed but had no causal connection with the injury, it was the jury’s duty to find defendant not guilty on this charge.
This accident occurred on the premises of General Motors over which these switching tracks ran. Because of this fact defendant had brought in General Motors as a third party defendant in order to secure indemnity, if a verdict should be returned in plaintiff’s favor on the charge of failure to furnish a safe place to work. Upon submission of the cause to the jury, General Motors’ counsel asked the court to submit to the jury three special interrogatories. The first read: “Was the defendant, Third-Party Plaintiff, Grand Trunk Western Railroad Company, guilty of negligence in the use of the car in question at the time in question with a defective coupler or coupler pin, which proximately caused or proximately contributed to cause the occurrence in question and the plaintiff’s alleged injuries? To this the jury answered “No.” The second question was: “Did defendant Grand Trunk Western Railroad Company fail to use ordinary care to furnish the plaintiff with a reasonably safe place in which to do his work?” To this the answer was “No.” The third was: “Are any of the injuries complained of by plaintiff proximately due, in whole or in part, to a violation of the Safety Appliance Act by Grand Trunk Western Railroad Company?” And to this the answer was “No.” Plaintiff asserts that the first interrogatory was so misleading as to constitute error in submitting it.
Obviously, it is not necessary, in order to constitute liability for a defective appliance, that defendant be negligent. Its liability arises from the violation of the statute, O’Donnell v. Elgin, J. & E. R. Co., 338 U.S. 384, 393, 70 S.Ct. 200, 94 L.Ed. 187, and the trial court so instructed the jury in no uncertain terms. The jury, having been thus correctly instructed, found in answer to the third interrogatory, as a matter of fact, that the plaintiff’s injuries were not due “in whole or in part to a violation of the Safety Appliance Act” by defendant. In such situation, whether it was negligent in that respect was wholly immaterial, — without relevance to the specific finding that no such violation had caused the injuries “in whole or in part.”
This interrogatory was not requested by defendant; but by the third party defendant, for some purpose beyond this court’s conception, apparently with the thought that it might affect the respective rights and liabilities of defendant and Genera] Motors. At any rate, the interrogatory could have had no effect under the court’s explicit charge to the jury that proof of negligence was wholly unnecessary under the Safety Appliance Act, and under the jury’s finding that the injuries were not caused by a violation of the Statute. The court’s charge was full and complete, covering properly all issues involved. Submission of a special interrogatory upon an irrelevant and immaterial subject could not prejudice plaintiff. The jury’s, general verdict and its answers to the other two pertinent interrogatories completely disposed of the issues. That another interrogatory asked for an answer upon an irrelevant issue could not invalidate the pertinent positive findings.
Plaintiff insists that the trial court committed error in restricting his evidence as to an unsafe place to work to a period of three to four months prior to the accident. It will be remembered that plaintiff originally charged negligence in this respect due to the presence of the specific piece of metal which, plaintiff claimed, turned under his foot, causing him to wrench his back under charge (c), i-n addition to the general complaint (b) of negligently failing to furnish him a safe place to work. At the close of the evidence plaintiff withdrew the. charge ■(c), saying that he would rely upon the general charge (b). However, his evidence as to an unsafe place to work, depended entirely upon and was confined to existence of the iron bar. Yet he attempted to prove that from time to time, prior to the accident some “debris” or scrap was found on the track, which, he said, was periodically cleaned away by someone. The court permitted him to prove that such was the situation for 3 to 4 months before the accident, but did not allow him to produce evidence of what occurred prior to that period. Evidently it was plaintiff’s theory that the presence of the iron bar was due to the fact that debris was not always promptly cleaned up and that evidence to that effect over a long period of time was evidence of failure to furnish a safe place to work. There was no proof that defendant knew or should have known of this bolt, except such as might be inferred from the fragmentary evidence of temporary cleanups of debris.
We need not decide whether the evidence admitted was proper proof of a condition of which defendant was bound to take notice, for it was submitted to the jury. Our question is rather whether the court abused its discretion in limiting the period as to which testimony was proper to 3 or 4 months. Of course, the trial court has a sound discretion in ruling on admissibility of evidence, in cases such as this. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Sivert v. Pennsylvania R. Co., 7 Cir., 197 F.2d 371. And, upon examination of the record, we find that plaintiff has made no showing of abuse of that discretion. In this connection, we think this bar comes within the same category as did the plank in Wetherbee v. Elgin, J. & E. Ry. Co., 7 Cir., 191 F.2d 302, 306, 307, where we said: “Here the board was a new threat to safety, not something about which the railroad itself had previous knowledge, even though boards had on some previous occasions been found on or near tracks of the Ruberoid plant.” We think that plaintiff here could not prove notice of an unsafe place to work by evidence of the occasional temporary .presence of general debris. If the conditions mentioned had been permanent rather than spasmodic, obviously, proof of their continuance, for a long period of time, would have been proper, as we held in Beattie v. Elgin, J. & E. Ry. Co., 217 F.2d 863. But such is not the case here. Accordingly we can not say as a matter of law, that the court abused its discretion in ruling that evidence of debris and its periodic removal for an indefinite 3 or 4 years was too remote to warrant an inference of constructive notice of the temporary presence of a movable piece of metal, 2 inches in diameter and 6 or 8 inches long, if that was what plaintiff expected to prove.
Furthermore, we doubt that plaintiff is in a position to assign error upon the court’s ruling. This is because he made no offer of any specific happenings he expected to prove prior to the 4 months. Davis v. R. K. O. Radio Pictures, 8 Cir., 191 F.2d 903; Rubino v. Commissioner of Internal Revenue, 6 Cir., 226 F.2d 291, 296; Williams v. Commissioner of Internal Revenue, 8 Cir., 44 F.2d 467; Federal Surety Co. v. Standard Oil Co., 8 Cir., 32 F.2d 119, 120. While he did object to being limited to a period of 3 or 4 months, plaintiff made no formal offer of proof, and we do not know what he expected to prove. In Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038, 1042, 1043, the court said: “This rule requiring a party who seeks to review the ruling of a court on rejection of testimony to make a proffer of proof is not a mere arbitrary technical rule, but a practical one, very essential to the orderly administration of justice. For instance, the witness Bush was asked what his physical condition was when he finally left defendant’s employment. If this court were permitted to decide as an abstract proposition that the question was a proper one, and should reverse the case for that reason, and it were remanded for a new trial, and the witness should then testify that he was in perfect physical condition when he left the work, the futility of a reversal would appear, and a manifest injustice would have been done the defendant.” And in Shama v. United States, 8 Cir., 94 F.2d 1, 5, the court held that: “The ruling on this objection is not reviewable in this court because no offer of proof was made, and we are not advised as to what the answer would have been.” So here, in the absence of any showing as to what the witness would have said, if allowed to answer, error cannot be successfully urged.
Plaintiff complains also of the court’s refusal to permit his attending physician to testify as to what plaintiff said to him in reciting the history of the latter’s accident. Irrespective of whether this evidence was rightly or wrongly excluded, it cannot be urged here as prejudicial error, for the reason that by its verdict for defendant the jury made unnecessary and irrelevant any determination of damages for the injuries plaintiff had suffered.
The judgment 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_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
In the Matter of LEHIGH VALLEY MILLS, INC., Bankrupt. United States of America, Appellant.
No. 14897.
United States Court of Appeals Third Circuit.
Argued Dec. 14, 1964.
Decided Feb. 12, 1965.
Sherman L. Cohn, Dept, of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Drew J. T. O’Keefe, U. S. Atty., John C. Eldridge, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
Joseph R. McDonald, Dower, Kane-hann, Huston, McDonald & Cahn, Allentown, Pa., for appellee.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
STALEY, Circuit Judge.
In the bankruptcy proceeding here on appeal, the right to priority in a fund to be created by the liquidation of certain personalty and choses in action of the bankrupt was asserted by the trustee for administration expenses and wage claims, and by the Small Business Administration (“S.B.A.”), an agency of the United States, as the holder of a lien for security interest in the property. There are also general liens of the Commonwealth of Pennsylvania against all of the property of the bankrupt for certain corporate taxes. Although the Commonwealth is not a party to this appeal, a determination of its rights in the fund is essential.
The operative facts can be briefly summarized. In 1962, a loan of $100,000 was made to Lehigh Valley Mills with the S.B.A. as a 51% participant. The loan was secured by a second mortgage on certain land and buildings of Lehigh, and also by security agreements covering insurance policies, equipment, inventory, and accounts receivable. Lehigh was adjudicated a bankrupt in June 1963. Immediately thereafter, the lenders, including the S.B.A., applied to the Referee for permission to liquidate the collateral. The Referee gave the S.B.A. authority to take possession of the collateral, liquidate it, and apply the proceeds to the loan balance. The trustee sought modification of the Referee’s order to the extent of requiring the S.B.A. to retain the proceeds in escrow for payment of the costs of bankruptcy administration and certain wage claims. The Referee refused to modify the order. The district court reversed and ordered the Referee to take appropriate steps to create a fund available for payment of administration expenses and wage claims. 225 F.Supp. 494 (E.D.Pa., 1964).
The district court held that under the Small Business Act, 15 U.S.C. § 646, state law must be applied in the determination of the question of priority of liens. It further held that under Pennsylvania law the Commonwealth liens were superior to the lien of the S.B.A. Therefore it concluded that the doctrine of In re Quaker City Uniform Co., 238 F.2d 155 (C.A.3, 1956), cert. denied sub nom. Delsea Corp. v. Flickstein and Veloric v. College Hall Fashions and Synthetic Specialists, Inc., 352 U.S. 1030, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957), applied, resulting in the postponement of the lien of the S.B.A. to administration expenses and wage claims. It also held that even if state law did not apply, the “first in time, first in right” principle of United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954), would' produce the same result. We are compelled to reverse for the reasons hereinafter expressed.
A resolution of the problem requires a determination of the relative priority to be given the lien of the S. B.A. and the liens of the Commonwealth of Pennsylvania on the security, involved. It is well settled that in this determination we must look to Federal law. United States v. Security Trust and Savings Bank, 340 U.S. 47, 49, 71 S.Ct. 111, 95 L.Ed. 53 (1950); State of Illinois ex rel. Gordon v. Campbell, 67 S.Ct. 340, 91 L. Ed. 348, 329 U.S. 362, 371 (1946); United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S.Ct. 304, 89 L.Ed. 294 (1945); Board of Trade of City of Chicago v. Johnson, 264 U.S. 1, 10, 44 S.Ct. 232, 68 L.Ed. 533 (1924); United States v. State of Oklahoma, 261 U.S. 253, 260, 43 S.Ct. 295, 67 L.Ed. 638 (1923); Ersa, Inc. v. Dudley, 234 F.2d 178, 180 (C.A.3, 1956). Of course, Congress in many situations has provided that state law should be used to determine the relative priority where a claim of the United States is involved.
The trustee argues that Congress has explicitly done so here by inclusion of the following provision in the Small Business Act:
“Any interest held by the Administration in property, as security for a loan, shall be subordinate to any lien on such property for taxes due on the property to a State, or'political subdivision thereof, in any case where such lien would, under applicable State law, be superior to such interest if such interest were held by any party other than the United States.” 15 U.S.C. § 646.
The statute sets up three separate requirements: (1) the state lien must be a lien on the particular property in controversy; (2) it must be for taxes due on the property; and (3) under state law, the state’s lien must be superior. Assuming arguendo that conditions 1 and 3 have been met, it is clear that the corporation taxes were not due “on the property” here involved.
The corporation taxes owed by Lehigh to the Commonwealth and creating the Commonwealth’s liens were capital stock taxes, corporate loan taxes, and corporate net income taxes. The capital stock tax is one on the dollar value of the corporation’s common, preferred, and special stock, 72 Purdon’s Pa.Stat.Ann. § 1871 (a)', and the valuation of the stock depends upon such factors as its highest selling price per share, average selling price, and earnings per share, 72 Id. § 1901. The corporate loan tax is upon “all scrip, bonds, certificates, and evidences of indebtedness issued * * * by any and every private corporation * * *.” 72 Id. § 3250-10. The corporate net income tax is “at the rate of six per centum per annum upon each dollar of net income of such corporation received by, and accruing to, such corporation * * 72 Id. § 3420c. It is obvious that none of the above taxes are on any particular or specific property. The corporation would have been subject to the taxes in question even if it did not possess any of the property subject to the liens of the S.B. A. This precise line of analysis is followed in two recent Pennsylvania cases. Girard Trust Corn Exchange Bank to the use of Small Business Administration v. Herbert Elkins, Inc., No. 4426, February 14, 1964, Court of Common Pleas No. 4, Philadelphia; First National Bank of Carbondale v. Scranton Battery Corp., No. 649 March Term, 1962, July 31,1964, Court of Common Pleas, Lackawanna. Each case involved the interpretation of § 646 in a situation materially identical to that present in the case at bar.
The S.B .A. argues that § 3466 of the Revised Statutes, 31 U.S.C. § 191, is applicable to give the Government priority here. We find no need to deal with this contention as we are fully convinced that the S.B.A. must prevail in any case. The rule of Federal common law is the general equitable principle, “first in time is the first in right.” United States v. City of New Britain, 347 U.S. 81, 85, 74 5. Ct. 367, 370 (1954). That test requires that a lien competing with one of the Federal Government must be choate — i. e., the identity of the lienor, of the property bound by the lien, and of the amount of the lien all must be certain. United States v. City of New Britain, supra at 84. The last requirement, of course, is only met if there is no further opportunity for judicially contesting the amount of the lien. Thus, the lienor must either have obtained judgment on the lien or it must be enforeible against the property by summary proceeding. United States v. Acri, 348 U.S. 211, 75 S.Ct. 239, 99 L. Ed. 264 (1955); United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268 (1955); United States v. Security Trust and Savings Bank, 340 U.S. 47, 71 S.Ct. Ill (1950). Here, the liens, of course, were not summarily enforeible and had not proceeded to judgment, and under state law, they had not completely bound the property of the bankrupt.
Under Pennsylvania law, the recording of the lien in the county prothonotary’s office is a condition precedent to its enforcement. 72 Purdon’s Pa.Stat. Ann. § 1404. Here they were not so recorded.
Further, the requirement that the property be completely bound by the lien is not met, for in Pennsylvania, a state tax lien is not “actually perfected as a choate lien on personal property until the writ of fieri facias has been issued and delivered to the sheriff for execution.” Ersa, Inc. v. Dudley, 234 F.2d 178, 182 (C.A.3,1956).
We conclude that, under every applicable test, the lien of the S.B.A. on the secured property is superior to the liens of the Commonwealth. This being so, the doctrine of In re Quaker City Uniform Co., 238 F.2d 155 (C.A.3,1956), is not applicable to subordinate the S.B.A.’s interest to administration expenses and wage claims under § 64, sub. a of the Bankruptcy Act, 11 U.S.C. § 104, sub. a.
The order of the district court will be reversed, and the cause remanded with instructions to reinstate the order of the Referee.
. It is settled that the Small Business Administration is an integral part of the Government entitled to priorities due the United States, Small Business Administration v. McClellan, 364 U.S. 446, 450, 51 S.Ct. 191, 5 L.Ed.2d 200 (1960).
. The real property on which the Small Business Administration held a second mortgage was exhausted by the first mortgage.
. That statute requires: “Whenever any person indebted to the United States is insolvent, * * * the debts due to the United States sliall be first satisfied * * *
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_app_stid | 36 | 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 an appellant.
Kim JONES et al., Plaintiffs-Appellees, v. The BOARD OF EDUCATION CLEVELAND CITY SCHOOL DISTRICT et al., Defendants-Appellants.
Nos. 73-1031, 73-1032.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 12, 1973.
Decided March 16, 1973.
Charles F. Clarke, Cleveland, Ohio, for defendants-appellants; Richard B. Bowles, Squire, Sanders & Dempsey, Cleveland, Ohio, on brief.
Ronald Pollock, New York City, for plaintiffs-appelleesLloyd B. Snyder and Edward R. Stege, Jr., Cleveland, Ohio, on brief.
Before PHILLIPS, Chief Judge, and WEICK and LIVELY, Circuit Judges.
PER CURIAM.
The motion to vacate the stay order entered by a single Judge of this Court at a time when the Court was not in session and when exceptional circumstances existed, has been considered and is hereby denied.
The appeals were expedited by order of the Court and have been briefed and argued orally. We need not consider the appeal from a Memorandum of the District Court dated October 31, 1972, as this Memorandum did not constitute a final appealable order, although it was marked by the Clerk of the District Court as a judgment.
The appeal which we consider is from a partial summary judgment entered by the District Court on December 15, 1972, in which the Court ordered that the Board of Education of the Cleveland City School District, the Superintendent of Schools, and the Deputy Superintendent provide school lunch programs by January 8, 1973, for thirty public schools and for thirty additional' public schools by April 30, 1973, which shall comply with the requirements of the National School Lunch Act.
The Cleveland City School District consists of about one hundred seventy-eight schools. Free hot lunches are already being served in all but about fifty-four of such schools. The schools so served are especially the needy ones.
Funds to pay the cost and expense of serving the lunches are supplied largely by the Federal Government through the Department of Agriculture. These funds are channeled through state educational officials to the local school districts which agreed to participate in the programs. The state, as well as the local school districts, contribute to the cost of the programs.
Although the State of Ohio educational officials were made parties defendant to the action by the plaintiffs, the District Court made no' finding or order against them. The Department of Agriculture was not made a party defendant.
Depositions were taken of officials of the Department of Agriculture by counsel for the School Board. Their testimony was to the effect that the School Board had complied substantially with the Act and the applicable regulations. The depositions were filed with the Clerk of the District Court prior to the entry of the summary judgment, but the District Court declined to consider them.
The construction and interpretation of the statute and applicable regulations by the agency charged with their administration were entitled to be given great weight by the Court. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). The District Court erred in not considering the testimony of these officials.
Since the Agriculture Department officials apparently have agreed with the School Board and not with the plaintiffs, it was imperative that the Department be made a party defendant in order to bind it by any judgment entered by the Court. The Act certainly did not contemplate that the School Board should bear the entire cost and expense of the school lunch program without contribution from either the state or federal governments. The School Board has been operating at a deficit.
It was the contention of the School Board that it was proceeding in good faith as rapidly as possible with the funds it had, to supply all needy children from families with - incomes below the national poverty level with free or reduced-cost hot lunches. • It was the contention of the plaintiffs that the Board should supply such lunches to all needy children, immediately, in the other fifty-four schools, either by providing cold lunch boxes in such schools where there are no facilities, or by contracting with commercial suppliers with mobile units to provide hot lunches.
The Board on July 7, 1972, made written application to the Department for an allowance of $700,000, to provide a central commissary and a satellite kitchen program for the schools, and to purchase trucks for transportation of the food. Subsequently it applied for $1,-300,000 for the same purposes. The Department has not acted on these applications.
It is not for us to act as a super Board of Education and to tell the duly elected Board members how to operate the public schools. It would seem to us anomalous for the Board to furnish hot lunches in the one hundred twenty-four schools now being served, and to serve cold lunches in the remaining fifty-four schools with which plaintiffs are concerned. We would question the authority of the Board' under the provisions of the Act to discriminate against any of the schools within its district. Nor should we instruct the Board to hire independent suppliers when it desires to perform the work with its own employees.
In our opinion it was error to enter summary judgment against the Board and its officials as there were disputed issues of both fact and law. S. J. Groves & Sons v. Ohio Turnpike Comm’n, 315 F.2d 235 (6th Cir.), cert. denied, 375 U.S. 824, 84 S.Ct. 65, 11 L.Ed.2d 57 (1963).
It was also error to proceed without making the Department of Agriculture a party defendant, as it was an indispensable party to a determination of the issues. Gardner v. Nashville Housing Authority, 468 F.2d 480 (6th Cir. 1972); Boles v. Greeneville Housing Authority, 468 F.2d 476 (6th Cir. 1972). It was also error not to include in its judgment the state educational officials.
The judgment of the District Court is reversed and the cause is remanded with instructions to require the plaintiffs to file an amended complaint making the Department of Agriculture a party defendant; to conduct an evidentiary hearing; to adopt findings of fact and conclusions of law; and to enter judgment in accordance therewith.
Reversed.
. 42 U.S.C. § 1751 et seq.
Question: What is the state of the first listed state or local government agency that is an appellant?
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_genresp2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Earnest EATON, Appellant, v. SS EXPORT CHALLENGER, her boats, her engines, tackle, etc. in rem and American Export Isbrandtsen Lines, Inc., a foreign corporation or association, as owners, operators and agents of said vessel, in personam, Appellees.
No. 10904.
United States Court of Appeals Fourth Circuit.
Argued March 9, 1967.
Decided April 6, 1967.
Arthur C. Ermlich, Norfolk, Va. (C. Arthur Rutter, Jr., and Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief), for appellant.
Virgil S. Gore, Jr., Norfolk, Va. (Sea-well, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellees.
Before SOBELOFF, BELL and WINTER, Circuit Judges.
WINTER, Circuit Judge:
In this appeal we are called upon to determine the application of 46 U.S.C.A. § 596, which provides a penalty for withholding wages, to a seaman working on port time. The district judge denied the seaman’s claim for recovery of the penalty and allowed him only his wages for one day, less maintenance and cure. Judgment was, therefore, entered for $2.16. For reasons we shall presently state, we affirm.
Libelant, Earnest Eaton, was employed by respondent on board the SS “EXPORT CHALLENGER” from December 20, 1964 until February 24,1965. On the latter date he was paid all of his earned wages and signed off from foreign articles at Hoboken, New Jersey. On February 25, Eaton was on port time on board the SS “EXPORT CHALLENGER” without having signed new articles, either foreign or coastwise. It was understood that, at an undetermined future date, the ship would make a coast-wise voyage and Eaton would be afforded the opportunity to sign coastwise articles.
On the morning of February 25, Eaton complained that he was ill. He obtained a master’s certificate, went to the United States Public Health Service Outpatient Clinic in New York City, and returned later in the afternoon with a certificate declaring him not fit for duty. He then departed for Norfolk, Virginia.
Although there was a conflict in the evidence, we may assume for the purpose of this appeal, that before leaving the ship appellant demanded his wages from the purser for February 25 for the full day, in the amount of $10.16. It is not contested that the purser advised his relief purser to prepare a voucher for wages for that sum. However, through oversight or otherwise, Eaton was not immediately paid. While the testimony of additional demands made by Eaton, or his legal representatives, was also conflicting, Eaton was not tendered his wages for that day until April 30, 1965, at which time the tender was refused. Eaton instituted a libel, alleging his entitlement to $20.32 wages for each day from February 25, 1965 until paid. An unconditional tender of the full amount of their liability to Eaton was not made by respondents until July 12, 1965, and by that time respondents’ liability, if § 596 were applicable, would have exceeded $3,000.00 less any set-off for maintenance and cure afforded Eaton in the interim.
Eaton’s claim of right to recover a sum equal to two days’ pay for each and every day during which payment was delayed is grounded on 46 U.S.C.A. § 596. As an examination of the text of this statute will disclose, it is operative with regard to the failure of the master or owner of any vessel making coasting voyages to pay every seaman his wages “ * * * within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens * It is undisputed that Eaton had no agreement under which he was shipped on February 25, 1965 — the day on which he worked, was taken ill, and left the ship— and no claim is made in this appeal that any agreement should have been entered into for that date. It is clear also that Eaton’s leaving the ship because of his illness on the afternoon of February 25 was not a discharge within the meaning of § 596. Section 596 establishes alternative occurrences for prompt payment of wages. The first is termination of an agreement under which a seaman shipped. The other is “time of discharge,” but after stating “at the time such seaman is discharged,” § 596 immediately adds “whichever first happens,” thus referring back to the other alternative. The type of discharge in contemplation of § 596 is, accordingly, discharge during the pendency of an agreement under which a seaman was shipped but before that agreement terminated by its terms.
From what we have said, we conclude that the natural and ordinary meaning of § 596 is that it has no application to work performed on port time, that is, when a vessel is tied up in the interim between the completion of one voyage and the commencement of another and when articles are neither in fact signed nor required. This conclusion finds support in a strong dictum in Pacific Mail S. S. Co. v. Schmidt, 241 U.S. 245, 36 S.Ct. 581, 60 L.Ed. 982 (1916) (Holmes, J.). See also, Gardner v. The L. N. Danzler, 177 F.Supp. 736, 742 (E.D.Va.1959). That § 596 is so limited is in accord with the apparent rationale of § 596 that seaman not be stranded in foreign ports or domestic ports remote from where they were employed without payment of a significant portion of the amounts due them, so as to obviate their being without funds or under economic compulsion to sign new articles on terms and conditions dictated by the master or owner.
Affirmed.
. Port time is day to day employment aboard ship in port at a time when the ship is between voyages.
. Ҥ 596. Time for payment
“The master or owner of any vessel making coasting voyages shall pay to every seaman his loages loithin two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens; and in case of vessels making foreign voyages, or from a port on the Atlantic to a port on the Pacific, or vice versa, within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens; and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the balance due him. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to ttoo days' pay for each and every day during lohich payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court; but this section shall not apply to masters or owners of any vessel the seamen of which are entitled to share in the profits of the cruise or voyage. This section shall not apply to fishing or whaling vessels or yachts.” (emphasis supplied)
. In the Pacific Mail case, the seaman had completed foreign articles in San Francisco and was paid in full. He, nevertheless, remained on board working, intending to sign new articles for the next voyage. He was discharged from his port time employment and refused his pay, because he was claimed to be accountable for silverware which was missing. He sued for his pay and the penalty for refusal of his pay provided for by the predecessor statute of present § 596, alleging that his employment began after the expiration of his foreign articles. In dealing with the statute, the Court said:
“ * * * it is far less clear that the district court was justified in treating the case as within the penalties of the act. The statute deals with voyages. The voyage for which the libellant shipped was at an end * * *. On the return to San Francisco within the time the libellant was paid all that was due to him * * *. No new articles had been signed, and it would seem * * * that the libellant’s legal standing was under an oral contract for a few days in port while hoping to be reshipped. It seems to us a very strong thing to say that any fair construction of the facts brings the case within the act. (emphasis supplied)
Id., p. 250, 36 S.Ct. p. 582.
Because the Court deemed that the lower courts had held to the contrary and the scope of the writ of certiorari did not ewtend to reopen the question, the Court ■ assumed the correctness of the decision below on this point, but reversed the decision of the Circuit Court of Appeals on another ground.
An examination of the two opinions below indicates that the assumption made by the Court was a violent one. The district court’s opinion did not expressly consider the applicability of the statute. Schmidt v. Pacific Mail S. S. Co., 209 F. 264 (N. D.Cal.1913). The Circuit Court of Appeals thought that the services for which the libel was brought were rendered under the articles. Pacific Mail S. S. Co. v. Schmidt, 214 F. 513, 520 (9 Cir. 1914). It was, of course, a complete answer that certiorari had not been granted to review the question.
. Another argument advanced is that § 596, by the terms of 46 U.S.C.A. § 544, is not applicable to vessels engaged in the coastwise trade and that the “EXPORT CHALLENGER” was so engaged. While 46 U.S.C.A. § 544 (1958 Ed.) states, inter alia that § 596 is inapplicable to vessels engaged in the coastwise trade, later editions drop § 596 as among the excluded sections. After oral argument, we were furnished a letter from the publishers of U.S.C.A. to the effect that in the 1958 edition of U.S.C.A. § 544 erroneously included § 596 among the enumerated exceptions. Because we conclude that, by its terms, § 596 has no application to Eaton’s case, we need not examine this argument or the publisher’s conclusions.
. Judge Bell, who was one of the panel to which this case was submitted, died before the opinion was prepared and submitted to him. After argument, he expressed himself in accord with the conclusion reached herein.
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_state | 10 | 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".
UNITED STATES of America, Plaintiff-Appellee, v. Jerry Alton BYERS, Robert Hugh Donahoe, Ronald Ray Versteeg, David Robert Poad, and Leonard Earl Higginson, Jr., Defendants-Appellants.
No. 78-5762
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Aug. 13, 1979.
Rehearing Denied Sept. 7,1979.
Frank Louderback, St. Petersburg, Fla., for Byers, Donahoe, Versteeg and Higgin-son.
James R. Dirmann, Sarasota, Fla., for Poad.
Judy S. Rice, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
Before AINSWORTH, CLARK and VANCE, 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.
CHARLES CLARK, Circuit Judge:
On May 13, 1978 the lookout for the Coast Guard Cutter STEADFAST saw several persons jumping from a white cabin cruiser to a red and white Magnum speedboat. The Magnum then sped off in a northeasterly direction, with the persons on board the Magnum flinging into the water bales of a substance later found to be marijuana. A party from the STEADFAST boarded the cabin cruiser and found it to be abandoned. A further search disclosed that forty-nine bales of marijuana and various personal effects remained on board. Thirty-eight bales of marijuana were found floating in the water. Two hours later, a customs plane spotted a Magnum boat dead in the water approximately ten miles to the northeast. The party from the STEADFAST also boarded the Magnum boat, but it too had been abandoned. No marijuana was found on board. When the STEADFAST came upon a shrimp boat approximately two hours later, the captain of the shrimp boat identified five men on the boat as persons he had picked up from the abandoned Magnum. These five persons, David Robert Poad, Leonard Earl Higginson, Jr., Ronald Ray Versteeg, Terry Alton Byers, and Robert Hugh Donahoe, were arrested, charged with conspiracy to possess and import marijuana with the intent to distribute, and were convicted. Presenting a number of different contentions, the alleged conspirators appeal. We affirm.
Defendants challenge the Coast Guard’s searches of both the cabin cruiser and the Magnum. Since the right to be free from unreasonable searches and seizures is personal in nature, each defendant must show that the disputed search and seizure “has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 429, 58 L.Ed.2d 387, 399 (1978). Thus, each defendant must show that he has standing to challenge the searches. In order to establish standing a defendant must establish either that he had a “legitimate expectation of privacy” in the premises searched, Id. at 143, 99 S.Ct. at 430, 58 L.Ed.2d at 401, or that possession of the seized item at the time of seizure is an essential element of the offense charged, Id. at 135, 99 S.Ct. at 426, 58 L.Ed.2d at 395. No defendant met either requirement here. They were not on board either of the boats during the searches nor have they established any legitimate expectation of privacy with regard to the interiors of either of the abandoned boats. Possession of the personal articles seized is obviously not an essential element of the crimes with which defendants were charged, though the articles were important evidence in connecting defendants with criminal conduct. Similarly, possession of marijuana at the time of the seizure is not an essential element of the crimes of conspiring to possess marijuana with the intent to distribute it, United States v. Archbold-Newball, 554 F.2d 665, 678-79 (5th Cir. 1977), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1978), or of conspiring to import marijuana with the intent to distribute it, United States v. Reyes, 595 F.2d 275, 279-280 (5th Cir. 1979). Thus, defendants have no standing to challenge the validity of the searches and seizures.
All defendants challenge the sufficiency of the evidence to convict them. This contention is without merit; the evidence against them was overwhelming. In addition to the evidence placing them near the scene of the crime, Poad’s wallet, identification belonging to Higginson, and a photograph of three of the alleged conspirators were all found on board the cabin cruiser. A duffle bag belonging to Donahoe was found on the Magnum boat. The prosecution established that Poad had access to the cabin cruiser and its keys. This evidence and the remaining evidence presented at trial was clearly sufficient to convict.
Byers, Versteeg and Donahoe assert that Poad’s wallet and Higginson’s identification should have been excluded under Federal Rule of Evidence 403 since the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to them. We reject this contention. The district judge acted well within the ambit of his discretion under Rule 403 in admitting the challenged evidence.
During the trial, the district judge admitted a certified copy of an information filed in Florida state court charging Versteeg with possession of marijuana with the intent to distribute it. The information also contained a notarized statement by the trial judge indicating that Versteeg was found guilty at a non-jury trial. Donahoe, Versteeg, Byers, and Higginson contend that the documents should not have been admitted since, under Florida law, the document was not the best evidence of a previous conviction. However, the best evidence rule is inapplicable to the admission of evidence concerning prior offenses. United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978) (en banc). Under Beechum, the question of whether a defendant actually committed a prior extrinsic offense is a jury question, unless the judge becomes convinced that the jury could not reasonably find that the defendant committed the alleged prior offense. Id. Viewed under that standard, the evidence offered to establish that Versteeg committed the prior offense was clearly sufficient to create a jury issue.
Defendants next contend that the evidence concerning the prior offense should have been excluded since its prejudicial effect outweighed any proper benefit to the prosecution. Beechum, 582 F.2d at 911, established a two-step test for determining the admissibility of extrinsic acts evidence:
First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.
The extrinsic act evidence here was relevant to a. disputed issue in the case other than Versteeg’s character — whether he intended to distribute the marijuana. With regard to the second step in the Beechum analysis, we find that the district court did not abuse his discretion under Rule 403 in deciding that the prejudice arising from the evidence did not substantially outweigh its probative value. Beechum indicated that the probative value of an extrinsic offense depends, in part, upon similarity to the charged offense and the length of time between the offenses. 582 F.2d at 915. Here, the elements of the extrinsic offense and the charged offense were virtually identical, and the extrinsic offense occurred slightly more than a month before the charged offense.
The government alleged in the indictment that one of the conspirators had committed an overt act in furtherance of the conspiracy by purchasing a Loran navigation unit. Defendants contend that there was a fatal variance between this portion of the indictment and the proof at trial since the prosecution failed to show that any of the defendants purchased the unit. We reject this argument. At trial it was shown that the Coast Guard removed a Loran unit from the cabin cruiser, that the unit was not on board the vessel when the owner last saw it, that a Loran had been sold to a person from Castaway Boats, that one of the items found in the search of the boats was a business card from Castaway Boats with the name of one of the conspirators on it, and that the persons on board both the cabin cruiser and the Magnum had used the Loran for navigational purposes. Although the Loran salesman could not identify one of the conspirators as the purchaser of the Loran unit, sufficient evidence existed for the jury to find that the overt act was proven.
We have examined the remainder of the defendants’ allegations and find them to be meritless.
AFFIRMED.
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: |
sc_lcdisagreement | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
GULF OIL CO. et al. v. BERNARD et al.
No. 80-441.
Argued March 30, 1981
Decided June 1, 1981
Powell, J., delivered the opinion for a unanimous Court.
Wm. G. Duck argued the cause for petitioners. With him on the briefs were Susan B. Sewell and Carl A. Parker.
Jack Greenberg argued the cause for respondents. With him on the brief were Bill Lann Lee, Barry L. Goldstein, and Ulysses Gene Thibodeaux.
Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Turner, Harlon L. Dalton, Jessica Dunsay Silver, Carol E. Heckman, and Leroy D. Clark.
Stuart Rothman and George C. Smith filed a brief for Hudson Pulp and Paper Corp. as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Arthur B. Spitzer and Kenneth J. Guido, Jr., for the American Civil Liberties Union Fund of the National Capital Area et al.; by Mayo L. Coiner and Harry M. Philo for the Association of Trial Lawyers of America; by Richard F. Watt and Martha A. Milk for the Chicago Council of Lawyers; and by William F. Kaspers and John D. Buchanan, Jr., for the Tallahassee Memorial Hospital.
Justice Powell
delivered the opinion of the Court.
This is a class action involving allegations of racial discrimination in employment on the part of petitioners, the Gulf Oil Co. (Gulf) and one of the unions at its Port Arthur, Tex., refinery. We granted a writ of certiorari to determine the scope of a district court’s authority to limit communications from named plaintiffs and their counsel to prospective class members, during the pendency of a class action. We hold that in the circumstances of this case the District Court exceeded its authority under the Federal Rules of Civil Procedure.
I
In April 1976, Gulf and the Equal Employment Opportunity Commission (EEOC) entered into a conciliation agreement involving alleged discrimination against black and female employees at the Port Arthur refinery. Gulf agreed to cease various allegedly discriminatory practices, to undertake an affirmative-action program covering hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf began to send notices to the 643 employees eligible for backpay, stating the exact amount available to each person in return for execution within 30 days of a full release of all discrimination claims dating from the relevant time period.
Approximately one month after the signing of the conciliation agreement, on May 18, 1976, respondents filed this class action in the United States District Court for the Eastern District of Texas, on behalf of all black present and former employees, and rejected applicants for employment, at the refinery. They alleged racial discrimination in employment and sought injunctive, declaratory, and monetary relief, based on Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U. S. C. § 1981. The defendants named were Gulf and Local 4-23 of the Oil, Chemical, and Atomic Workers International Union. Plaintiffs’ counsel included three lawyers from the NAACP Legal Defense and Education Fund. Through this lawsuit, the named plaintiffs sought to vindicate the alleged rights of many of the employees who were receiving settlement offers from Gulf under the conciliation agreement.
On May 27, Gulf filed a motion in the District Court seeking an order limiting communications by parties and their counsel with class members. An accompanying brief described the EEOC conciliation agreement, asserting that 452 of the 643 employees entitled to backpay under that agreement had signed releases and been paid by the time the class action was filed. Gulf stated that after it was served in the case, it ceased sending backpay offers and release forms to class members. It then asserted that a lawyer for respondents, Ulysses Gene Thibodeaux, had attended a meeting of 75 class members on May 22, where he had discussed the case and recommended that the employees not sign the releases sent under the conciliation agreement. Gulf added that Thibodeaux reportedly had advised employees to return checks they already had received, since they could receive at least double the amounts involved through the class action.
The court entered a temporary order prohibiting all communications concerning the case from parties or their counsel to potential or actual class members. The order listed several examples of communications that were covered, but stated that it was not limited to these examples. It was not based on any findings of fact.
On June 8, Gulf moved for a modification of the order that would allow it to continue mailings to class members, soliciting releases in exchange for the backpay amounts established under the conciliation agreement. Respondents filed a brief in opposition, arguing that the ban on their communications with class members violated the First Amendment. On June 11, the court heard oral argument, but took no evidence. Gulf then filed a supplemental memorandum proposing that the court adopt the language of "Sample Pretrial Order No. 15” in the Manual for Complex Litigation App. § 1.41. Respondents replied with another memorandum, accompanied by sworn affidavits of three lawyers. In these affidavits counsel stated that communications with class members were important in order to obtain needed information about the case and to inform the class members of their rights. Two affidavits stated that lawyers had attended the May 22 meeting with employees and discussed the issues in the case but neither advised against accepting the Gulf offer nor represented that the suit would produce twice the amount of backpay available through the conciliation agreement.
On June 22, another District Judge issued a modified order adopting Gulf’s proposal. This order imposed a complete ban on all communications concerning the class action between parties or their counsel and any actual or potential class member who was not a formal party, without the prior approval of the court. It gave examples of forbidden communications, including any solicitation of legal representation of potential or actual class members, and any statements “which may tend to misrepresent the status, purposes and effects of the class action” or “create impressions tending without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice.” The order exempted attorney-client communications initiated by the client, and communications in the regular course of business. It further stated that if any party or counsel “assert [ed] a constitutional right to communicate . . . without prior restraint,” and did so communicate, he should file with the court a copy or summary of the communication within five days. The order, finally, exempted communications from Gulf involving the conciliation agreement and its settlement process.
The court made no findings of fact and did not write an explanatory opinion. The only justification offered was a statement in the final paragraph of the order:
“It is Plaintiff’s [sic] contention that any such provisions as hereinbefore stated that limit communication with potential class members are constitutionally invalid, citing Rodgers v. United States Steel Corporation, 508 F. 2d 152 (3rd Cir. 1975), cert. denied, 420 U. S. 969 (1975). This Court finds that the Rodgers case is inapplicable, and that this order comports with the requisites set out in the Manual for Complex Litigation . . . which specifically exempts constitutionally protected communication when the substance of such communication is filed with the Court.”
On July 6, pursuant to the court’s order respondents submitted for court approval a proposed leaflet to be sent to the class members. This notice urged the class to talk to a lawyer before signing the releases sent by Gulf. It contained the names and addresses of respondents’ counsel and referred to this case. Respondents argued that the notice was constitutionally protected and necessary to the conduct of the lawsuit. Gulf opposed the motion. The court waited until August 10 to rule on this motion. On that date, 2 days after the expiration of the 45-day deadline established by the court for acceptance of the Gulf offer by class members, the court denied the motion in a one-sentence order containing no explanation. As a result, the named plaintiffs and their counsel were prevented from undertaking any communication with the class members prior to the deadline.
On appeal from a subsequent final order, respondents argued that the limitations on communications imposed by the District Court were beyond the power granted the court in Federal Rule of Civil Procedure 23 (d) and were unconstitutional under the First Amendment. A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed the District Court. 596 F. 2d 1249 (1979).
The panel majority reasoned that orders limiting communications are within the extensive powers of district courts in managing class litigation. It held that the District Court could easily have concluded that the need to limit communications outweighed any competing interests of respondents, especially since the order merely required prior approval of communications, rather than prohibiting them altogether. Id., at 1259-1261. Turning to respondents’ First Amendment argument, the majority held that the order was not a prior restraint because it exempted unapproved communications whenever the parties or their counsel asserted a constitutional privilege in good faith. The court also found no serious “chill” of protected speech. Id., at 1261-1262.
Judge Godbold wrote a dissenting opinion arguing that the order limiting communications was not “appropriate” within the meaning of Federal Rule of Civil Procedure 23 (d) because the court did not make any finding of actual or imminent abuse. He reasoned that Gulf’s unsworn allegations of misconduct could not justify this order, and that a court could not impose such a limitation routinely in all class actions. Id., at 1267-1268. He added that it was improper in this context for the District Court to encourage compliance with the conciliation agreement through such an order. Id., at 1269-1270. Judge Godbold also found that the order violated respondents’ First Amendment rights. Id., at 1270-1275.
The Fifth Circuit granted a rehearing en banc, and reversed the panel decision concerning the order limiting communications. 619 F. 2d 459 (1980). A majority opinion joined by 13 judges held that the order was an unconstitutional prior restraint on expression accorded First Amendment protection. The court held that there was no sufficient particularized showing of need to justify such a restraint, that the restraint was overbroad, and that it was not accompanied by the requisite procedural safeguards. Id., at 466^478. Eight judges concurred specially on the theory that it was unnecessary to reach constitutional issues because the order was not based on adequate findings and therefore was not “appropriate” under Federal Rule of Civil Procedure 23 (d). Id., at 478, 481. One judge would have affirmed the District Court.
We granted a writ of certiorari to review the question whether the order limiting communications was constitutionally permissible. 449 U. S. 1033 (1980).
II
Rule 23 (d) of the Federal Rules of Civil Procedure provides: “(d) ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this rule applies, the court may make appropriate orders: ... (3) imposing conditions on the representative parties or on intervenors . . . [and] (5) dealing with similar procedural matters.” As the concurring judges below recognized, 619 F. 2d, at 478, 481, prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision. See Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandéis, J., concurring). As a result, in this case we first consider the authority of district courts under the Federal Rules to impose sweeping limitations on communications by named plaintiffs and their counsel to prospective class members.
More specifically, the question for decision is whether the limiting order entered in this case is consistent with the general policies embodied in Rule 23, which governs class actions in federal court. Class actions serve an important function in our system of civil justice. They present, however, opportunities for abuse as well as problems for courts and counsel in the management of cases. Because of the potential for abuse, a district court has' both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties. But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules. Eisen v. Carlisle & Jacquelin, 417 U. S. 156 (1974). Moreover, petitioners concede, as they must, that exercises of this discretion are subject to appellate review. Brief for Petitioners 21, n. 15; see Eisen, supra; Oppenheimer Fund, Inc. v. Sanders, 437 U. S. 340, 359 (1978).
In the present case, we are faced with the unquestionable assertion by respondents that the order created at least potential difficulties for them as they sought to vindicate the legal rights of a class of employees. The order interfered with their efforts to inform potential class members of the existence of this lawsuit, and may have been particularly injurious — not only to respondents but to the class as a whole — because the employees at that time were being pressed to decide whether to accept a backpay offer from Gulf that required them to sign a full release of all liability for discriminatory acts. In addition, the order made it more difficult for respondents, as the class representatives, to obtain information about the merits of the case from the persons they sought to represent.
Because of these potential problems, an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. In addition, such a weighing — identifying the potential abuses being addressed— should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. As the court stated in Coles v. Marsh, 560 F. 2d 186, 189 (CA3), cert. denied, 434 U. S. 985 (1977):
“[T]o the extent that the district court is empowered . . . to restrict certain communications in order to prevent frustration of the policies of Rule 23, it may not exercise the power without a specific record showing by the moving party of the particular abuses by which it is threatened. Moreover, the district court must find that the showing provides a satisfactory basis for relief and that the relief sought would be consistent with the policies of Rule 23 giving explicit consideration to the narrowest possible relief which would protect the respective parties.”
Ill
In the present case, one looks in vain for any indication of a careful weighing of competing factors. Indeed, in this respect, the District Court failed to provide any record useful for appellate review. The court made neither factual findings nor legal arguments supporting the need for this sweeping restraint order. Instead, the court adopted in toto the order suggested by the Manual for Complex Litigation — on the apparent assumption that no particularized weighing of the circumstances of the case was necessary.
The result was an order requiring prior judicial approval of all communications, with the exception of cases where respondents chose to assert a constitutional right. Even then, respondents were required to preserve all communications for submission to the court within five days. The scope of this order is perhaps best illustrated by the fact that the court refused to permit mailing of the one notice respondents submitted for approval. See supra, at 96-97. This notice was intended to encourage employees to rely on the class action for relief, rather than accepting Gulfs offer. The court identified nothing in this notice that it thought was improper and indeed gave no reasons for its negative ruling.
We conclude that the imposition of the order was an abuse of discretion. The record reveals no grounds on which the District Court could have determined that it was necessary or appropriate to impose this order. Although we do not decide what standards are mandated by the First Amendment in this kind of case, we do observe that the order involved serious restraints on expression. This fact, at minimum, counsels caution on the part of a district court in drafting such an order, and attention to whether the restraint is justified by a likelihood of serious abuses.
We recognize the possibility of abuses in class-action litigation, and agree with petitioners that such abuses may implicate communications with potential class members. But the mere possibility of abuses does not justify routine adoption of a communications ban that interferes with the formation of a class or the prosecution of a class action in accordance with the Rules. There certainly is no justification for adopting verbatim the form of order recommended by the Manual for Complex Litigation, in the absence of a clear record and specific findings of need. Other, less burdensome remedies may be appropriate. Indeed, in many cases there will be no problem requiring remedies at all.
In the present case, for the reasons stated above, we hold that the District Court abused its discretion. Accordingly, the judgment below is affirmed.
It is so ordered.
The letter stated that “[b]ecause this offer is personal in nature, Gulf asks that you not discuss it with others.” It added, however, that those who did not understand the offer could request that a company official arrange an interview with a Government representative. Brief for United States et al. as Amici Curiae la.
Three of the named plaintiffs, Bernard, Brown, and Johnson, had filed individual charges before the EEOC in 1967. The Commission pursued conciliation efforts based on these charges until February 1975 when these three persons received letters stating that Gulf and the union no longer wished to entertain conciliation discussions. The letters stated that the three could request “right to sue” letters at any time, and'would have 90 days from the receipt of such letters to file suit under Title VII. Bernard and Brown received notices of right to sue from the Commission on June 11, 1976.
The conciliation agreement between Gulf and the EEOC was premised on a separate charge filed against Gulf by the Commission itself in 1968.
Two other attorneys also assisted in the representation.
The Manual, containing an important compilation of suggested procedures for handling complex federal cases, was published under the supervision of a distinguished group of federal judges. It is printed in full in Part 2 of 1 J. Moore, J. Lucas, H. Fink, D. Weckstein, & J. Wicker, Moore’s Federal Practice (1980).
In its proposed order, Gulf added language allowing it to continue paying backpay and obtaining releases under the conciliation agreement. It suggested that the Clerk of the Court should send a notice to class members informing them that they had 45 days in which to decide to accept the Gulf offer.
The June 22 order stated, in part:
“In this action, all parties hereto and their counsel are forbidden directly or indirectly, orally or in writing, to communicate concerning such action with any potential or actual class member not a formal party to the action without the consent and approval of the proposed communication and proposed addresses by order of this Court. Any such proposed communication shall be presented to this Court in writing with a designation of or description of all addressees and with a motion and proposed order for prior approval by this Court of the proposed communication. The communications forbidden by this order include, but are not limited to, (a) solicitation directly or indirectly of legal representation of potential and actual class members who are not formal parties to the class action; (b) solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action; (c) solicitation by formal parties to the class action of requests by class members to opt out in class actions under subparagraph (b)(3) of Rule 23, F. R. Civ. P.; and (d) communications from eoun-' sel or a party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential Court orders therein which may create impressions tending, without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice. The obligations and prohibitions of this order are not exclusive. All other ethical, legal and equitable obligations are unaffected by this order.
“This order does not forbid (1) communications between an attorney and his client or a prospective client, who has on the initiative of the client or prospective client consulted with, employed or proposed to employ the attorney, or (2) communications occurring in the regular course of business or in the performance of the duties of public oiflce or agency (such as the Attorney General) which do not have the effect of soliciting representation by counsel, or misrepresenting the status, purposes or effect of the action and orders therein.
“If any party or counsel for a party asserts a constitutional right to communicate with any member of the class without prior restraint and does so communicate pursuant to that asserted right, he shall within five days after such communication file with the Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral.”
This section of the order was drawn word-for-word from the Manual for Complex Litigation App. § 1.41. The order then went on to authorize Gulf to continue with the settlement process under the terms of the conciliation agreement, and to direct the Clerk of Court to send the notice described in n. 4, supra. A paragraph near the end of the order then reiterated the proscription on communications:
“(8) [It is ordered that] any further communication, either direct or indirect, oral or in writing (other than those permitted pursuant to paragraph (2) above) from the named parties, their representatives or counsel to the potential or actual class members not formal parties to this action is forbidden.”
The proposed notice stated:
“ATTENTION BLACK WORKERS OF GULF OIL
“The Company has asked you to sign a release. If you do, you may be giving up very important civil rights. It is important that you fully understand what you are getting in return for the release. IT IS IMPORTANT THAT YOU TALK TO A LAWYER BEFORE YOU SIGN. These lawyers will talk to you FOR FREE: [names and addresses of respondents’ counsel],
“These lawyers represent six of your fellow workers in a lawsuit titled Bernard v. Gvlf Oil Co., which was filed in Beaumont Federal Court on behalf of all of you. This suit seeks to correct fully the alleged discriminatory practices of Gulf.
“Even if you have already signed the release, talk to a lawyer. You may consult another attorney. If necessary, have him contact the above-named lawyers for more details. All discussions will be kept strictly confidential.
“AGAIN, IT IS IMPORTANT THAT YOU TALK TO A LAWYER. Whatever your decision might be, we will continue to vigorously prosecute this lawsuit in order to correct all the alleged discriminatory practices at Gulf Oil.”
This order had effected a substantial change in the procedure mandated by the conciliation agreement, which provided that “failure on the part of any member to respond within thirty days shall be interpreted as acceptance of back pay” (emphasis added). App. 59.
On January 11, 1977, the District Court granted summary judgment to petitioners, dismissing the complaint as untimely. On appeal, respondents argued that their claims had been presented in timely fashion. Both the Fifth Circuit panel, 596 F. 2d 1249, 1254H258 (1979), and the en banc court, 619 F. 2d 459, 463 (1980), held for respondents on this issue and therefore ordered a remand for further proceedings.
In holding that the order restricted protected speech, the court relied both on cases involving essentially political litigation, NAACP v. Button, 371 U. S. 415 (1963); In re Primus, 436 U. S. 412 (1978), and on cases that may be closer to the present case, involving collective efforts to gain economic benefits accorded a specific group of persons under federal law, United Transportation Union v. Michigan Bar, 401 U. S. 576 (1971); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967); Railroad Trainmen v. Virginia State Bar, 377 U. S. 1 (1964).
Rule 83 provides a more general authorization to district courts, stating that in “all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.”
Respondents in this case were performing the customary role of named plaintiffs, who seek to “vindieatfe] the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost.” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 338 (1980). Rule 23 expresses “a policy in favor of having litigation in which common interests, or common questions of law or fact prevail, disposed of where feasible in a single lawsuit.” Rodgers v. United States Steel Corp., 508 F. 2d 152, 163 (CA3), cert. denied, 423 U. S. 832 (1975).
Although traditional concerns about “stirring up” litigation remain relevant in the class-action context, see n. 12, infra, such concerns were particularly misplaced here. Respondents were represented by lawyers from the NAACP Legal Defense and Education Fund — a nonprofit organization dedicated to the vindication of the legal rights of blacks and other citizens. See In re Primus, supra, at 422, 426-431 (distinguishing, with respect to First Amendment protections, between solicitation of clients intended to advance political objectives and solicitation of clients for pecuniary gain).
The class-action problems that have emerged since Rule 23 took its present form in 1966 have provoked a considerable amount of comment and discussion. See, e. g., Manual for Complex Litigation; Developments in the Law: Class Actions, 89 Harv. L. Rev. 1318 (1976); Miller, Problems of Administering Judicial Relief in Class Actions under Federal Rule 23 (b) (3), 54 F. R. D. 501 (1972).-
The potential abuses associated with communications to class members are described in Waldo v. Lakeshore Estates, Inc., 433 F. Supp. 782 (ED La. 1977). That court referred, inter alia, to the “heightened susceptibilities of nonparty class members to solicitation amounting to barratry as well as the increased opportunities of the parties or counsel to 'drum up’ participation in the proceeding.” Id., at 790. The court added that “[ujnapproved communications to class members that misrepresent the status or effect of the pending action also have an obvious potential for confusion and/or adversely affecting the administration of justice.” Id., at 790-791. See also Manual for Complex Litigation App. § 1.41.
See generally Comment, Judicial Screening of Class Action Communications, 55 N. Y. U. L. Rev. 671, 699-704 (1980); Note, 88 Harv. L. Rev. 1911, 1917-1920 (1975).
In Title VII, Congress expressed a preference for voluntary settlements of disputes through the conciliation process. E. g., Alexander v. Gardner-Denver Co., 415 U. S. 36, 44 (1974). But, as the en banc majority stated, it is not appropriate to promote such a policy by restricting information relevant to the employee’s choice:
“The choice between the lawsuit and accepting Gulf’s back pay offer and giving a general release was for each black employee to make. The court could not make it for him, nor should it have freighted his choice with an across-the-board ban that restricted his access to information and advice concerning the choice.” 619 F. 2d, at 477.
As noted infra, we do not reach the question of what requirements the First Amendment may impose in this context. FuE consideration of the constitutional issue should await a case with a fully developed record concerning possible abuses of the class-action device.
Cf. In re Halkin, 194 U. S. App. D. C. 257, 274, 598 F. 2d 176, 193 (1979) (“To establish 'good cause’ for a protective order under [Federal Rule of Civil Procedure] 26 (c), '[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements’ ”) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure §2035, p. 265 (1970)).
The order contains a serious ambiguity concerning the response that the court could make if it found no merit in respondents’ assertion of a constitutional right with respect to a particular communication. Arguably, this “constitutional” exception was not a realistic option for respondents because they could be exposed to the risk of a contempt citation if the court determined that a communication submitted after-the-fact was not constitutionally protected. See 619 F. 2d, at 471 (referring to “the omissions and ambiguities of the order and possible differing constructions as to when, if at all, one is protected against contempt”). At the very least, parties or their counsel would be required to defend their good faith, at the risk of a contempt citation. Because of this fact, and the practical difficulties of the filing requirement, see id., at 470-471, this exception for constitutionally protected speech did little to narrow the scope of the limitation on speech imposed by the court.
We agree with the Court of Appeals’ refusal to give weight to Gulf’s unsworn allegations of misconduct on the part of respondents’ attorneys: “We can assume that the district court did not ground its order on a conclusion that the charges of misconduct made by Gulf were true. Nothing in its order indicates that it did, and, if it did, such a conclusion would have been procedurally improper and without evidentiary support. Rather the court appears to have acted upon the rationale of the Manual that the court has the power to enter a ban on communications in any actual or potential class action as a prophylactic measure against potential abuses envisioned by the Manual.” Id., at 466' (footnote omitted).
See n. 12, supra.
For example, an order requiring parties to file copies of nonprivi-leged communications to class members with the court may be appropriate in some circumstances.
In the conduct of a case, a court often finds it necessary to restrict the free expression of participants, including counsel, witnesses, and jurors. Our decision regarding the need for careful analysis of the particular circumstances is limited to the situation before us — involving a broad restraint on communication with class members. We also note that the rules of ethics properly impose restraints on some forms of expression. See, e. g., ABA Code of Professional Responsibility, DR 7-104 (1980).
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer: |
songer_summary | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Leon WYSZATYCKI, d/b as Greater Erie Broadcasting Company, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, WKBW-TV, Inc., a New York corporation, Intervenor.
No. 14651.
United States Court of Appeals District of Columbia Circuit.
Argued April 17, 1959.
Decided May 26, 1959.
Mr. Mitchell S. Cutler, Washington, D. C., with whom Messrs. Vincent B. Welch and Fred J. Eden, Jr., Washington, D. C., were on the brief, for appellant.
Mr. John H. Conlin, Counsel, F. C. C., with whom Messrs. John L. Fitzgerald, Gen. Counsel, F. C. C., and Max D. Paglin, Asst. Gen. Counsel, F. C. C., were on the brief, for appellee. Messrs. Richard A. Solomon, Asst. Gen. Counsel, F. C. C. at the time the record was filed, and Mark E. Fields, Counsel, F. C. C. at the time the record was filed, also entered appearances for appellee.
Mr. Jack P. Blume, New York City, for intervenor. Mr. Peter Shuebruk, New York City, also entered an appearance for intervenor.
Before Washington, Danaher, and Bastían, Circuit Judges.
DANAHER, Circuit Judge.
Appellant, Leon Wyszatycki, doing business as Greater Erie Broadcasting Company (Greater Erie), Great Lakes Television, Inc. (Great Lakes) and intervenor, herein WKBW, filed mutually exclusive applications to construct and operate a television station on Channel 7 in Buffalo, New York. The Commission decided in favor of WKBW. Great Lakes is no longer a party, but Greater Erie here charges error in that after the Initial Decision, the Commission allowed amendments by WKBW (1) to demonstrate its continued financial capacity and (2) to modify its engineering proposal. Greater Erie further attacks, as unsupported by substantial evidence, the Commission’s findings and conclusions as to the appellant’s lack of reliability.
The record was closed on July 28,1955. In the Examiner’s Initial Decision released on February 1, 1956, favoring Great Lakes, it was found that WKBW had established its financial qualifications. This finding, in part, stemmed from a showing that a Buffalo bank had agreed to lend WKBW $200,000, contingent upon its obtaining a network affiliation not later than September 29, 1956. Exceptions were filed, but oral argument was not heard until September 24, 1956. The Commission on its own motion accordingly ordered the record reopened and remanded the case to the Examiner expressly to permit all parties the right of cross examination of WKBW’s witnesses and to offer evidence as to the status of the pending bank loan. The Examiner again found, as did the Commission later, that the bank loan of $200,-000 was still available to WKBW whether it had a network affiliation or not. Involved, of course, was simply the question of adequate financing of WKBW. It would seem that the Commission reasonably concluded that a loan without restriction and not subject to a contingency was at least equivalent to a loan which previously had been limited.
Before the filing of applications in this case the Commission had held that coverage would not be an issue in comparative hearings for television construction permits. Appellant sought enlargement of the issues to include comparative coverage, but its petition was denied. Thus, as the case went forward before the Examiner in the state of the law then governing, competing technical proposals were not in issue. Over a year after the hearing record had been closed and some seven months after the Initial Decision was released, this court on September 6, 1956, handed down its decision in Hall v. Federal Communications Commission, 1956, 99 U.S.App.D.C. 86, 237 F.2d 567. There we held that the Commission is required to consider proffered evidence of coverage based on the Commission’s propagation curves. Accordingly, in the light of the Hall case and because of the fundamental change in the Commission’s hearing procedures thereby required, the Commission on its own motion remanded the case to the Examiner for further hearings and for a supplemental Initial Decision on specific coverage issues. All parties were free to amend their engineering proposals but intervenor alone did so. The Examiner on May 8, 1958, released a supplement to the Initial Decision and concluded that there was no significant difference among the engineering proposals of the parties, and the Commission later so found.
The Commission issued its orders of remand with reference to the intervenor’s financial qualifications and engineering proposals as required for good cause shown. There is no claim that any party was denied a full and fair opportunity to make a record on either point. There is no suggestion by the appellant that there was error in the conduct of the protracted hearings. Appellant insists only that the Commission could not lawfully remand the case to the Examiner, once his Initial Decision had been released. It is argued, in effect, that the Commission is the prisoner of its own rule. We disagree.
Contrary to appellant’s argument, we are satisfied that under the circumstances described, the Commission was duty bound to require that the record be reopened to consider changes in the status of the parties. We said as much in Enterprise Company v. Federal Communications Commission, 105 U.S.App.D.C. ——, 265 F.2d 103; see also, Enterprise Company v. Federal Communications Commission, 1955, 97 U.S.App.D.C. 374, 231 F.2d 708. With the lapse of time pending the Commission’s hearing of argument on the exceptions in September, 1956, the contingency upon which the bank loan depended was about to expire. The Commission simply directed a full inquiry on the point. In the reopened hearing it was developed that the bank which had insisted upon a network affiliation by September 1956, was willing to forego the original limitation. Thus the Commission found that WKBW was dealing with the same bank, for the same loan in the same amount, so that the previously approved financial qualifications of the intervenor continued. Appellant suffered no detriment whatever on that account. Again, while the hearing was in progress, a decision of this court prescribed the law to govern Commission proceedings in the future. The Commission thereupon decided it was no more than equitable and just that all parties be given, as indeed they were, an opportunity to amend their respective engineering proposals. We think the Commission properly found that the further hearings in these two challenged respects were necessitated, and that the amendments were correctly allowed. In no other way could there have been an adequate record before the Commission on the points mentioned.
The Commission found that WKBW was “equal or superior to one or both of the other applicants in virtually all areas of comparison.” Examination of the record discloses that the Commission’s conclusion is not lacking in substantial support on the record as a whole.
As to the remaining issue of appellant’s lack of reliability, perhaps the less said, the better. Specifically to record here the detailed instances of appellant’s varied deficiencies would add nothing to his future standing. It is sufficient for us, after study of an adequate record, to note our agreement with the Commission’s amply supported observation: “[Wjhile none of the foregoing violations are sufficiently serious as to disqualify [appellant] * * * as a licensee, they do raise a question as to his reliability and attitude toward assumption of the duties and obligations going with the privileges granted, and his application must suffer when compared to the other applicants in this proceeding, who have not been shown to be guilty of such practices.” 'That the Commission decided not to find appellant disqualified as it considered aspects of his character, background and training was a matter not for us but for Commission discretion.
We find no merit in the appellant’s contentions.
Affirmed.
. WKBW had asked the Commission either to limit itself to the Examiner’s finding that WKBW was financially qualified or that it be permitted to file an affidavit to demonstrate that a network affiliation was no longer a condition precedent to the loan. The Commission ruled, “The form of the relief requested by WKBW-TV, however, would deny the other parties the right to cross-examine the witnesses presented to prove the present status of its bank loan or to offer evidence in rebuttal and, consequently, consideration of the affidavits submitted by WKBW-TV as requested must be denied. Nevertheless, WKBW-TV equitably should be afforded an opportunity to show the present availability of the loan in question.”
. After pointing out that there had been no adjudication of the comparative merits of the engineering proposals of the applicants, tbe Commission’s order read: “We do not have hero an applicant attempting to cure a deficiency exposed by tbe hearing process. Bather we have an applicant, which after being advised that engineering proposals were to be given comparative consideration, seeks the same opporunity to amend that ho would have had if that knowledge had been available to him at the start of the hearing. We believe that good cause exists for permitting WKBW-TV to amend that portion of its application relating to its engineering proposals.”
. 47 C.F.R. § 1.701 (1949) reads:
“The rules and regulations of the Commission may be suspended, revoked, modified, amended, or supplemented, in whole or in part, at any time by the Commission, subject to the provisions of the Administrative Procedure Act. Any provision of the rules may be waived by the Commission, if good cause therefor exists.” Cf. 47 C.F.R. § 1.15 (1958), particularly that sentence reading: “Any provision of the rules may be waived by the Commission on its own motion or on petition if good cause therefor is shown.”
. 47 C.F.R.. § 1.365(a) (1949) provides for amendment of an application as a matter of right prior to designation for hearing; for amendment after designation for hearing upon petition served upon all parties of record, to “be granted for good cause shown”; but such a petition to amend will not “be accepted * * * if if is filed after public notice has been given of the issuance of a proposed decision * * When this section was revised, effective February 3, 1958, the last quoted clause was deleted. 47 C.F.R. § 1.311(b) (3958) provides only that “requests to amend an application after it has been designated for hearing * * * will be granted only for good cause shown.” Here, the Examiner, upon remand, was directed after supplemental hearings to file a proposed supplemental Initial Decision.
. Cf. Federal Communications Commission v. WOKO, 1946, 329 U.S. 223, 229, 67 S.Ct. 213, 91 L.Ed. 204.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
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, Plaintiff-Appellee, v. Toribio SOTO-ORNELAS, Defendant-Appellant.
No. 87-2442.
United States Court of Appeals, Tenth Circuit.
Dec. 23, 1988.
William P. Earley, Asst. Federal Public Defender, Oklahoma City, Old., for defendant-appellant.
Robert E. Mydans, Asst. U.S. Atty. (William S. Price, U.S. Atty., and Ted A. Richardson, Asst. U.S. Atty., on the brief), Oklahoma City, Okl., for plaintiff-appellee.
Before BALDOCK, SETH, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
There are two issues raised in this appeal: (1) whether the district court erred in denying the motion of defendant-appellant, Toribio Soto-Ornelas, to suppress all evidence obtained following an allegedly unconstitutional interrogation and arrest; and (2) whether defendant’s conviction for false representation and use of a Social Security number and false representation of United States citizenship violated his Fifth Amendment due process rights because it was inconsistent with the Immigration Reform and Control Act of 1986.
We conclude that the interrogation and arrest were lawful and that, in any event, none of the evidence introduced at defendant’s trial was obtained as a result of the interrogation. Accordingly, the motion to suppress was properly denied. We also conclude that defendant’s conviction was not inconsistent with the Immigration Reform and Control Act of 1986 and did not violate his Fifth Amendment right to due process. Therefore, we affirm the judgment of the district court.
Defendant raises these issues by means of a direct appeal from his criminal conviction in the United States District Court for the Western District of Oklahoma. In that court, a jury found defendant guilty of false representation and use of a Social Security number and false representation of United States citizenship.
At trial, the government established the following facts. In May 1987, an insurance administrator, Cindy Marshall, contacted Franklin Bell, an agent with the Immigration and Naturalization Service (INS). She told him that she was suspicious that a worker’s compensation claimant who went by the name “Joshua Callahan” was an illegal alien. The INS sent a certified letter to the address given by Marshall asking Callahan to appear at the INS office. The INS never received a return receipt.
Bell subsequently went to the address that Marshall had provided and was informed by a neighbor that the family that had lived there had moved out a few weeks earlier. He also was informed that the family was “Spanish,” that Eric Soto was the adult male, and that one of the preschool aged children was named Joshua Callahan.
Marshall contacted Bell again and advised him that the man claiming to be Callahan would be attending a worker’s compensation hearing that day at the Worker’s Compensation Court in Oklahoma City, Oklahoma. Bell attended the hearing, which was captioned as a claim by Joshua Callahan. During the hearing, the worker’s compensation court asked the claimant if Joshua Callahan was his true name. The claimant, through an interpreter, told the court that his real name was Toribio Soto-Ornelas. At some point in the hearing, opposing counsel asked Soto-Ornelas about his Social Security number. Soto-Ornelas’ counsel objected to the question, claiming that the answer might tend to incriminate his client.
After the hearing, and after the attorney who had represented Soto-Ornelas at the worker’s compensation hearing had left, Bell approached Soto-Ornelas. Bell identified himself as an INS agent, and asked Soto-Ornelas what country he was a citizen of and if he had any documentation supporting his presence in the United States. Soto-Ornelas told Bell that he was a citizen of Mexico and that he did not have any documentation allowing him to be in the United States. After repeating the questions to Soto-Ornelas in a conference room and receiving the same answers, Bell placed him under arrest. Shortly thereafter, the attorney who had represented Soto-Ornelas in the worker’s compensation hearing returned and asserted that he represented Soto-Ornelas in immigration matters as well. Bell conducted no further questioning of Soto-Ornelas at that time.
Defendant’s statements made during the initial interrogation were not introduced against him at trial. In fact, he was not charged with illegal immigration. Rather, he was charged only with illegal representation and use of a social security number and illegal representation of United States citizenship. Additionally, there was no finding below nor is there any indication in the record on appeal that any evidence introduced against defendant at the trial was acquired as a result of information obtained during the interrogation of defendant.
Before trial, defendant moved to suppress all evidence obtained during and after his arrest, claiming that Bell’s interrogation violated his Sixth Amendment right to an attorney because it was not conducted in the presence of his worker’s compensation attorney, that the interrogation was contrary to INS guidelines, and that his initial arrest was without probable cause. Defendant also moved to dismiss his indictment, claiming that it violated his right to due process because it was unfairly inconsistent with the Immigration Reform and Control Act of 1986. The district court denied both motions.
Defendant was convicted by jury of all counts and was sentenced to two years probation and a fifty dollar fine on each count. He appeals from that conviction and sentence.
I.
SUPPRESSION OF EVIDENCE
Defendant contends that all evidence obtained during and subsequent to his arrest should have been excluded as “fruit of the poisonous tree” under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In support of this contention, defendant argues that Bell’s interrogation of him while his attorney was not present improperly circumvented his Sixth Amendment right to counsel and was contrary to INS guidelines. He claims that without the allegedly improper interrogation, Bell lacked probable cause to arrest him, and therefore all evidence obtained subsequent to the arrest should have been excluded.
The standard of review on an appeal of the denial of a motion to suppress evidence is that the reviewing court must accept the trial court’s findings of fact unless clearly erroneous and must consider the evidence in the light most favorable to the government. United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986); United States v. Rios, 611 F.2d 1335, 1344 (10th Cir.1979).
In challenging the interrogation, defendant relies primarily on Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). In that case, the Supreme Court held that:
[Kjnowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.
Id. at 176, 106 S.Ct. at 487. Defendant argues that Bell waited until defendant was separated from his attorney before interrogating him, thereby circumventing his right to have his attorney present.
In Moulton, the Court found that introduction of statements made by a defendant, after he had been indicted, to a codefendant who was a secret government informant was improper. In contrast, the defendant here had not been placed in custody and no formal charges or proceedings had been initiated against him when he was questioned by Bell. The Sixth Amendment right to counsel attaches only “after the initiation of formal charges.” Moran v. Burbine, 475 U.S. 412, 431, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). Therefore, the interrogation in the instant case could not have violated defendant’s Sixth Amendment right to counsel because that right had not yet attached.
Defendant also argues that Bell’s interrogation was unlawful because Bell did not comply with INS guidelines. INS agents are authorized by federal statute “to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States.” 8 U.S.C. § 1357(a)(1). The government concedes that INS policy guidelines provide that an INS agent generally should notify attorneys of an intention to interview their clients. In this case, the government relies on an exception to that general policy which provides that the attorney need not be notified where the interview is unrelated to the matter for which the attorney represents the individual. In support of this exception, Bell testified that he believed that defendant’s attorney at the worker’s compensation hearing did not represent defendant on immigration matters. Also, at oral argument before this Court, defendant’s counsel conceded that there is nothing in the record showing that defendant had, in fact, engaged any attorney for immigration purposes at the time of this interrogation.
However, we need not decide whether the exception to the policy guideline was met. Even if Bell’s failure to contact defendant’s attorney was improper under INS guidelines, that would not require exclusion of evidence. The INS guidelines are not statutory or constitutional requirements; rather, they are internal administrative policies. Although we agree with defendant and the district court that it would have been better practice to ask defendant’s attorney about the scope of his representation before questioning defendant, we do not believe that Bell acted unlawfully under the facts of this case in directly approaching the defendant.
Moreover, even if the initial interrogation were unlawful, there was no improper “fruit” to be excluded. Defendant was not prosecuted for being an illegal alien and nothing stated by him during the interrogation was used against him at trial. Rather, evidence of his false social security number, false name, etc. was developed independently by the INS.
Defendant has made no showing that any evidence used against him at trial was connected with the initial arrest or interrogation. Instead, defendant contends that but for the arrest, the INS would not have conducted its investigation. This argument is belied by the fact that the INS already was investigating defendant before the arrest. Furthermore, as the Supreme Court stated in Wong Sun, the test for exclusion of “fruit of the poisonous tree” is not a “but for” test:
We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417 (quoting Maguire, Evidence of Guilt, 221 (1959)). See also United States v. Carson, 793 F.2d 1141, 1148 (10th Cir.) (“[Evidence, the knowledge of which is obtained as a result of prior police illegality, is admissible so long as ... it has been subsequently obtained by means sufficiently distinguishable from the prior illegality to purge the evidence of the taint”), cert. denied, 479 U.S. 914, 107 S.Ct. 315, 93 L.Ed. 2d 289 (1986).
The INS has demonstrated, and defendant has not rebutted, that the evidence actually used to convict defendant was obtained by means that were “sufficiently distinguishable” from the initial interrogation and arrest. Therefore, there is no basis for suppressing the evidence.
II.
DUE PROCESS
Defendant raises a novel constitutional argument — that his conviction violated his right to due process because it was inconsistent with the grant of amnesty in the Immigration Control and Reform Act of 1986. Defendant contends that the indictment was “simply unfair” because it covered offenses that are part of the “realities” associated with being an illegal alien, such as using false names and Social Security numbers. Our standard of review for this issue of law is de novo. See In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988); In re Tri-State Equipment, Inc., 792 F.2d 967, 970 (10th Cir.1986).
After careful consideration of defendant’s argument, we conclude that it borders on being frivolous. We find that it has no support in either the language of the Act or its legislative history. Therefore, we agree with the district court’s analysis of this issue. As that court concluded, “the Act was not intended to bestow amnesty to aliens for those unlawful acts committed during their undocumented residency, despite the fact that such acts arose from, and were associated with, employment.” (July 16, 1987 Order at 3.) Rather, recognizing that the United States has a “large undocumented alien population living and working within its borders,” Congress sought to legalize “the status of aliens who have been present in the United States for several years.” H.Rep. No. 99-682(1), 1986 U.S.Code Cong. & Ad.News at 5649, 5653. There is no mention in the Act or in its legislative history of granting amnesty for anything other than the status of being an illegal alien. In fact, the Act specifically excludes from amnesty aliens who have been convicted of a felony or three or more misdemeanors. 8 U.S.C. § 1255a(a)(4)(B). Furthermore, the legislative history includes a statement by the House Committee on the Judiciary that amnesty was intended only for those aliens who “have abided by the laws of this country.” 1986 U.S.Code Cong. & Ad.News at 5675. Defendant has not shown any legislative history to the contrary.
In conclusion, we find no constitutional violation in convicting an illegal alien of crimes that he committed while illegally in the United States, even though those crimes are fairly common crimes committed in the act of concealing illegal status.
AFFIRMED.
. Bell testified at trial that defendant probably considered himself custodialized when he went with Bell to the conference room.
. Defendant also argues that if the interrogation was improper, his arrest was illegal because, without defendant’s answers to Bell's questions, Bell lacked probable cause to arrest him. Because we have determined that the interrogation was not improper, we need not reach this issue.
. We note that there is no indication in the record that defendant ever applied for amnesty under the Act.
. The Act sets forth four requirements for amnesty: (1) timely application; (2) continuous unlawful residence in the United States since 1982; (3) continuous physical presence since November 6, 1986; and (4) admissibility as an immigrant. Under the fourth requirement, the alien must establish, among other things, that he "has not been convicted of any felony or of three or more misdemeanors committed in the United States.” 8 U.S.C. § 1255a(a).
. Defendant relies on other statements by the House Committee on the Judiciary. For example, the Committee stated that the “legalization program should be implemented in a liberal and generous fashion." 1986 U.S.Code Cong. & Ad.News at 5676. We do not believe that this language supports defendant’s conclusion that Congress intended to grant amnesty for crimes other than illegal entry or residence in this country.
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_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 v. LUTZ.
No. 8564.
Circuit Court of Appeals, Third Circuit.
Argued April 4, 1944.
Decided May 15, 1944.
Louis B. LeDuc, of Camden, N. J. (Milton C. Nurock, of Camden, N. J., and Isidor Ostroff, of Philadelphia, Pa., on the brief), for appellant.
Thomas J. Curtin, of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellee.
Before JONES, GOODRICH, and Mc-LAUGHLIN, Circuit Judges.
GOODRICH, Circuit Judge.
The defendant was indicted on two counts for buying and selling Maine selected seed potatoes at prices higher than the maximum price permitted by Maximum Price Regulation No. 271 and § 4 of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 904(a). Pie was acquitted on the second count for selling, but found guilty on the first count which charged him with having “bought and received” seed potatoes at prices above the permitted máximums. Defendant has appealed from the judgment of conviction and sentence.
The underlying facts giving rise to the prosecution are not disputed. Defendant is a produce wholesaler in the city of Philadelphia. On April 19 certain individuals offered to sell him a hundred bags of No. 1 Maine selected seed potatoes and fifty bags of No. 2 Maine selected seed potatoes. The terms of the transaction were cash upon delivery. The price to be paid for the No. 1 seed potatoes was $6.50 per cwt. and for the No. 2, $4.55 per cwt. The potatoes were delivered to the defendant late in the afternoon on the same day. Defendant did not have the cash on hand to pay for them. He gave the sellers his check drawn to the •order of cash in the amount of $877.60 with the understanding that he would go with one of the sellers to the bank the next morning and secure the cash for them. Pursuant to this arrangement one of the sellers called at defendant’s premises the following morning and was told to return an hour later. He returned but was again told to come back. When he came back for the third time, about 10:30 A.M., an O.P.A. agent was on the premises and took possession of the check for the $877.60. This check remained in the possession of the O.P.A. and has never been cashed. However, after the intervention of the O.P.A. in the transaction, defendant paid the sellers $510.90 for the potatoes. This sum was not in excess of the established maximum prices.
Defendant contends that there was a failure to show that any maximum price regulation applicable to seed potatoes existed at the time the offense is charged to have been committed. This contention cannot be sustained. Maximum Price Regulation 271, covering certain perishable food commodities, was promulgated November 7, 1942, and became effective November 9, 1942. 7 Fed.Reg. 9179 (1942). It applied to “All white potatoes used for human consumption, not including seed potatoes,” as defendant points out. § 1351.-1001(a) (1). However, it was amended a number of times after its initial promulgation. Paragraph 1 of Amendment 5, 8 Fed.Reg. 3397 (1943), made Maximum Price Regulation 271 applicable to “All white potatoes, whether used for human consumption or as seed potatoes.” Paragraph 2(3) reads “Appendix C sets forth maximum prices for seed potatoes which were previously exempt from this regulation.” Paragraph 3 provides “Section 1351.1003(d) is added to read as follows: (d) All intermediate sellers as defined in this section, who sell seed potatoes shall compute their prices under Appendix C.” Section 1351.1019 as added by paragraph 7 deals with Appendix C. Subsection (a) thereof states that “Maximum prices for the sale of seed potatoes in bulk by farmers and in sacks * * * by country shippers * * * and intermediate sellers are established in this Appendix C.” Subsections (c) and (d) state the method for computing the maximum prices to be charged by country shippers for sales of certified or selected seed potatoes. Subsection (e) states the method for computing the maximum prices for certified or selected seed potatoes to be charged by intermediate sellers. Paragraph (4) of subsection (f) requires the seller of seed potatoes to furnish an invoice stating that the selling price does not exceed the maximum price. Subsection (h) defines seed potatoes. Amendment 5 became effective March 19, 1943, one month before the offense charged was alleged to have been committed. Further amendments to Maximum Price Regulation 271, prior to April 19, 1943, did not exempt seed potatoes from Maximum Price Regulation 271 but merely added to and further amended the provisions covering seed potatoes as promulgated by Amendment 5. See: Amendment 6, 8 Fed.Reg. 3733 (1943), effective March 24, 1943; Amendment 8, 8 Fed.Reg. 4725. (1943), effective April 8, 1943.
There can be no doubt therefore that on April 19, 1943, when defendant entered into the transaction in question, Maximum Price Regulation 271 as amended applied to seed potatoes such as were involved in. the transaction. Intermediate sellers had to sell seed potatoes at prices not in excess of certain maximum prices. Defendant’s vendors came within this classification.
The government contends that, allowing the benefit of every possible markup permitted under the regulation to an intermediate .seller in computing .his maximum prices, it is clear that the prices for which the potatoes were to be purchased by the defendant were substantially beyond the ceiling prices allowed by Maximum Price Regulation 271. Defendant, per contra, contends that there were fatal infirmities in the proof of the ceiling price at the trial. The prosecution had an investigator of the O.P.A. testify on this issue. The United States Attorney asked of him:
“What is the ceiling price of No. 1 Maine selected potatoes? For a cash and carry wholesaler, after the first resale?
*****
■“A. * * * $4.78 * * * per/cwt bags.
“Q. * * * and now on the No. 2’s:
* * * * *
“A. $4.30 per/cwt. bag. * * *”
The defect defendant points to is the fact that the question as phrased did not refer to “seed” potatoes, and thus no ceiling price was established for No. 1 and No. 2 Maine selected seed potatoes. However, full examination of the investigator’s testimony discloses that the figures he stated pertained to No. 1 and No. 2 Maine selected seed potatoes.
The investigator did not, in his testimony, go into a detailed explanation of how he arrived at the figures he stated. In a brief filed with this Court, the step by step calculations were set out along with the sections of Maximum Price Regulation 271 relied upon. Defendant in a reply brief challenges the interpretations placed upon some of these sections, their applicability to the facts and hence the figures arrived at. We do not, however, share the view that there was a mistake in the sections relied upon or the results reached in applying them. Further, the defendant had an opportunity in the court below to cross-examine the O.P.A. investigator and by this and his own evidence to prove that the regulations did not apply to the facts or that the calculations were erroneous. This counsel for defendant failed to do so that there was nothing before the jury but the figures offered by the government which the jury, by its verdict, accepted as correct.
The defendant also, in effect, now questions the admissibility of the statements that ceiling prices were $4.78 and $4.30 per cwt. Maximum Price Regulation 271 does not prescribe a flat dollar and cents ceiling price for seed potatoes; it only states the methods for arriving at the ceiling price in each particular case. The figures stated by the investigator were apparently computed on this basis, as now explained to us in argument. However, numerous factors entered into this determination: various differentials, freight charges, sellers’ prices, etc. Some of these matters were issues of fact as to which the testimony of the investigator might have been inadmissible, as hearsay or as secondary evidence. The figures given by him were based on these factors and were obviously conclusions. If defendant had seasonably urged specific objections, the government would have had to adduce competent proof of the factors entering into the calculations and the correctness of the final determination. However, such objections were not urged and the court failed to request this evidence of its own motion. The rule is too well settled to require discussion that a rule of evidence not invoked is waived and that if there is a failure to object to the admission of testimony at the trial such objection will usually not be considered for the first time on appeal. To prevent a failure of justice this rule has been relaxed, especially in cases where the life or liberty of a defendant is involved. But the circumstances of this case leave no doubt that the maximum prices were violated and the jury found this violation to have been intentional. We are not to be understood as approving the method of proof used to establish the maximum prices. As evidentiary matters they were incorrectly offered into evidence. But it is too late for the defendant now to complain.
Complaint is made of the fact that the various amendments to the regulation were not offered in evidence in the trial below. They were judicially noticeable, both by the express provisions of the statute providing for the Federal Register, and by precedent concerning judicial notice of action of a department of the federal government. United States v. Brown, 7 Cir., 1944, 140 F.2d 136. See Caha v. United States, 1894, 152 U.S. 211, 221, 222, 14 S.Ct. 513, 38 L.Ed. 415.
The next question is whether there was sufficient evidence for the jury to find that defendant “bought and received” seed potatoes at prices above those permitted by Maximum Price Regulation 271 and whether if he did, this constitutes a violation of the regulation and the act of Congress. Defendant’s argument is that the transaction between himself and the sellers of the potatoes was a sale for cash and that title to the potatoes did not vest in him until the cash was paid. Since, at the time the O.P.A. agent interceded, the cash had not been paid for the potatoes, title never vested in the defendant and, therefore, he cannot be said to have “bought” them. The check which he gave to the vendors when they delivered the potatoes, it is said, was not intended as payment, but was merely a memorandum of the transaction until the cash could be procured.
We do not think it was the intendment of the statute or the regulations promulgated thereunder to have the enforcement of the Price- Control Act turn upon technical concepts of the law of sales. The act is quite broad. It states that “It shall be unlawful * * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order under section . . . or of any price schedule effective in accordance with the provisions of section 206 . . . or to offer, solicit, attempt, or agree to do any of the foregoing.” § 4(a), 50 U.S.C.A.Appendix, § 904(a). The regulation provides that it shall not be evaded “whether by direct or indirect methods, in connection with any offer, solicitation, agreement, sale, delivery, purchase or receipt of, [etc.]” Paragraph 4 of Amendment 5, supra. The judge charged the jury to find'“Did the Defendant buy and receive potatoes at prices in excess of ceiling prices ?" He did not go further and define to the jurors under what circumstances title gasses under the law of sales. Counsel for defendant did not make any requests for charge on this point, nor did he take exception to the charge.
There are several answers to the contentions of the defendant on this phase of the argument. The first is that since we are concerned here with a federal statute creating a federal offense, not in terms of state law, the local law of sales is inapplicable. When a commodity is offered at a certain price for cash upon delivery and the offer is accepted and the article delivered but actual payment is postponed until the following day, the purchaser can be said to have “bought” the commodity within the meaning of the Price Control Act and the applicable • regulations.
Second, even if we'assume that Congress had reference to the technical law of sales generally, there was no error in refusing to direct a verdict for the defendant. Although a sále for cashvon delivery requires the payment of cash before title passes, where the seller delivers even though the buyer does not proffer the cash, the seller may be held under certain circumstances to have waived the condition and the transfer becomes absolute. See Frech v. Lewis, 1907, 218 Pa. 141, 67 A. 45, 11 L.R.A.,N.S., 948, 120 Am.St.Rep. 864, 11 Ann.Cas. 545; 3 Williston on Contracts, Rev.Ed.1936, §§ 730-733. We cannot say that as a matter of law, under the present' facts there was not such a waiver. The question was for the jury. The defendant himself testified that he was approached to buy some potatoes and that he “bought them at the price—” These and other facts were properly submitted to the jury and defendant cannot complain of a failure to charge that which he did not request.
Third, there is a sufficient additional basis to uphold the verdict of the jury. The statute makes it unlawful “to buy or receive”. The indictment charged the defendant with having “bought and received”. Thus under the act it is unlawful if one (1) buys a commodity in violation of the act and regulations or (2) receives a commodity in violation of the act and regulations. The commission of either one of these acts, alone, is unlawful. Since the indictment charges both, conjunctively, proof of either one of them is sufficient to support a finding of guilt. Here it is undisputed that the defendant received potatoes under an agreement and it was proved that the prices specified in that agreement were above those permitted at the time the potatoes were delivered. At the moment defendant so received them the statute was violated.
The defendant has stressed that ultimately he in fact paid for the potatoes at prices permitted by Maximum Price Regulation 271. As just stated, however, the offense already had been committed prior to that time. Payment was made after the O.P.A. had intervened. Prior to payment defendant had hound himself to pay at prices above those permitted and had received the commodities. Cf. Henderson v. Glasser, D.C.W.D.PaP.1942, 46 F.Supp. 460.
Affirmed.
§ 1351.1003 (a) defines “intermediate sellers”:
“For the purposes of this regulation ‘intermediate sellers’ are divided into the following classes and the term means any wholesale seller, including, but not limited to terminal distributors, service and cash-and-carry wholesalers, carlot receivers, jobbers or any other person who purchases for the purpose of reselling, except country shippers and retailers, and who take title and make sales to any person who is not the ultimate consumer. The term ‘ultimate consumer’ does not include institutional, commercial or industrial users.
(1) Class 1: Retailer-owned cooperative wholesaler. ♦ * *
(2) Class %: Cash and ccn-ry wholesalers. A cash and carry wholesaler is a wholesaler not in Class 1 who distributes food commodities for resale or to commercial, industrial and institutional users without materially changing their form and who does not customarily deliver or extend credit.
(3) Class 8: Service wholesalers. A service wholesaler is a wholesaler not in Class 1 who distributes food commodities for resale or to commercial, industrial or institutional users without materially changing their form and who customarily delivers, or delivers and extends credit to purchasers.” 7 Fed. Reg. 9180 (1942).
Defendant’s counsel asked whether the investigator had a- record of prices in court. The investigator answered that he had the computations he had made and the regulations with him.
As distinguished from a substantive rule of law, such as the “parol evidence” rule.
1 Wigmore on Evidence, 3rd Ed. 1940, § 18.
Some recent decisions on this point are: United States v. Maggio, 3 Cir., 1942, 126 F.2d 155, certiorari denied 1942, 316 U.S. 686, 62 S.Ct. 1275, 86 L.Ed. 1758; Simon v. United States, 4 Cir., 1941, 123 F.2d 80, certiorari denied 1941, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555; Hilliard v. United States, 4 Cir., 1941, 121 F.2d 992, certiorari denied 1941, 314 U.S. 627, 62 S.Ct. 111, 86 L.Ed. 503; Beausoliel v. United States, 1939, 71 App.D.C. 111, 107 F.2d 292; Reavis v. United States, 10 Cir., 1939, 106 F.2d 982.
See: Mumforde v. United States, 1942, 76 U.S.App.D.C. 107, 130 F.2d 411, certiorari denied 1942, 317 U.S. 656, 63 S.Ct. 53, 87 L.Ed. 527; Miller v. United States, 10 Cir., 1941, 120 F.2d 968; Hayes v. United States, 10 Cir., 1940, 112 F.2d 676; Benson v. United States, 5 Cir., 1940, 112 F.2d 422, certiorari denied 1940, 311 U.S. 644, 61 S.Ct. 43, 85 L.Ed. 411.
44 U.S.C.A. § 307.
The court, apparently of its own motion, granted an exception to counsel for defendant to additional instructions given to the jurors at their request.
Crain v. United States, 1896, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097 (overruled on another point in Garland v. State of Washington, 1914, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772); Troutman v. United States, 10 Cir., 1939, 100 F.2d 628, 631; Shepard v. United States, 9 Cir., 1916, 236 F. 73, 81, 82; United States v. Hall, C.C.S.D.Ala.1871, 26 Fed.Cas. pages 79, 82, No. 15,282.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
sc_casesource | 027 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
UNITED STATES v. R. L. C.
No. 90-1577.
Argued December 10, 1991
Decided March 24, 1992
Souter, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which Rehnquist, C. J., and White, Stevens, Scalia, Kennedy, and Thomas, JJ., joined, and an opinion with respect to Parts II-B and II-C, in which Rehnquist, C. J., and White and Stevens, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 307. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 311. O’Con-nor, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 312.
Paul J. Larkin, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson.
Katherian D. Roe argued the cause for respondent. With her on the brief were Daniel M. Scott, Scott F. Tilsen, and Andrew H. Mohring.
Justice Souter
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, and an opinion with respect to Parts II-B and II-C, in which The Chief Justice, Justice White, and Justice Stevens join.
The provisions of the Juvenile Delinquency Act require the length of official detention in certain circumstances to be limited to “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” 18 U. S. C. § 5037(c)(1)(B). We.hold that this limitation refers to the maximum sentence that could be imposed if the juvenile were being sentenced after application of the United States Sentencing Guidelines.
1 — 1
Early m the morning of November 5, 1989, after a night of drinking, the then-16-year-old respondent R. L. C. and another juvenile stole a car with which they struck another automobile, fatally injuring one of its passengers, 2-year-old La Tesha Mountain. R. L. C. is a member of the Red Lake Band of Chippewa Indians, and these events took place on the Red Lake Indian Reservation, which is within Indian country as defined by federal law. These circumstances provide federal jurisdiction in this case. See 18 U. S. C. §§ 1151, 1162, 1153. Upon certifying that a proceeding was authorized in federal court under § 5082 on the ground that no state court had jurisdiction over the offense, the Government charged R. L. C. with an act of juvenile delinquency.
After a bench trial, the District Court found R. L. C. to be a juvenile who had driven a car recklessly while intoxicated and without the owner’s authorization, causing Mountain’s death. R. L. C. was held to have committed an act of juvenile delinquency within the meaning of § 5031, since his acts would have been the crime of involuntary manslaughter in violation of §§ 1112(a) and 1153 if committed by an adult. The maximum sentence for involuntary manslaughter under 18 U. S. C. § 1112(b) is three years. At R. L. C.’s disposi-tional hearing, the District Court granted the Government’s request to impose the maximum penalty for respondent’s delinquency and accordingly committed him to official detention for three years.
Despite the manslaughter statute’s provision for an adult sentence of that length, the United States Court of Appeals for the' Eighth Circuit vacated R. L. C.’s sentence and remanded for resentencing, after concluding that 36 months exceeded the cap imposed by § 5037(c)(1)(B) upon the period of detention to which a juvenile delinquent may be sentenced. 915 F. 2d 320 (1990). Although the statute merely provides that juvenile detention may not extend beyond “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult,” the Court of Appeals read this language to bar a juvenile term longer than the sentence a court could have imposed on a similarly situated adult after applying the United States Sentencing Guidelines. Under the Guidelines, involuntary manslaughter caused by recklessness has a base offense level of 14. United States Sentencing Commission, Guidelines Manual § 2A1.4(a)(2) (Nov. 1991). The court found, and the Government agrees, see Brief for United States 22, n. 5, that because R. L. C. had the lowest possible criminal history level, Category I, the Guidelines would yield a sentencing range of 15-21 months for a similarly situated adult. The Court of Appeals therefore concluded that the maximum period of detention to which R. L. C. could be sentenced was 21 months.
The Government sought no stay of mandate from the Court of Appeals, and on remand the District Court imposed detention for 18 months. Although R. L. C. has now served this time, his failure to complete the 3-year detention originally imposed and the possibility that the remainder of it could be imposed saves the case from mootness. See United States v. Villamonte-Marquez, 462 U. S. 579, 581, n. 2 (1983). We granted the Government’s petition for certiorari, 501 U. S. 1230 (1991), to resolve the conflict between the Eighth Circuit’s holding in this case and the Ninth Circuit’s position, adopted in United States v. Marco L., 868 F. 2d 1121, cert. denied, 493 U. S. 956 (1989), and endorsed by the Government.
II
A
The Government suggests a straightforward enquiry into plain meaning to explain what is “authorized.” It argues that the word “authorized” must mean the maximum term of imprisonment provided for by the statute defining the offense, since only Congress can “authorize” a term of imprisonment in punishment for a crime. As against the position that the Sentencing Guidelines now circumscribe a trial court’s authority, the Government insists that our concern must be with the affirmative authority for imposing a sentence, which necessarily stems from statutory law. It maintains that in any event the Sentencing Commission’s congressional authorization to establish sentencing guidelines does not create affirmative authority to set punishments for crime, and that the Guidelines do not purport to authorize the punishments to which they relate.
But this is too easy. The answer to any suggestion that the statutory character of a specific penalty provision gives it primacy over administrative sentencing guidelines is that the mandate to apply the Guidelines is itself statutory. See 18 U. S. C. § 3553(b). More significantly, the Government’s argument that “authorization” refers only to what is affirmatively provided by penal statutes, without reference to the Sentencing Guidelines to be applied under statutory mandate, seems to us to beg the question. Of course it is true that no penalty would be “authorized” without a statute providing specifically for the penal consequences of defined criminal activity. The question, however, is whether Congress intended the courts to treat the upper limit of such a penalty as “authorized” even when proper application of a statutorily mandated Guideline in an adult case would bar imposition up to the limit, and an unwarranted upward departure from the proper Guideline range would be reversible error. § 3742. Here it suffices to say that the Government’s construction is by no means plain. The text is at least equally consistent with treating “authorized” to refer to the result of applying all statutes with a required bearing on the sentencing decision, including not only those that empower the court to sentence but those that limit the legitimacy of its exercise of that power. This, indeed, is arguably the more natural construction.
Plain-meaning analysis does not, then, provide the Government with a favorable answer. The most that can be said from examining the text in its present form is that the Government may claim its preferred construction to be one possible resolution of statutory ambiguity.
B
On the assumption that ambiguity exists, we turn to examine the textual evolution of the limitation in question and the legislative history that may explain or elucidate it. The predecessor of § 5037(c) as included in the Juvenile Justice and Delinquency Prevention Act of 1974 provided that a juvenile adjudged delinquent could be committed to the custody of the Attorney General for a period “not [to] extend beyond the juvenile’s twenty-first birthday or the maximum term which could have been imposed on an adult convicted of the same offense, whichever is sooner.” 18 U. S. C. § 5037(b) (1982 ed.) (emphasis added). In its current form, the statute refers to the “maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” 18 U. S. C. § 5037(c) (emphasis added). On its face, the current language suggests a change in reference from abstract consideration of the penalty permitted in punishment of the adult offense, to a focused en-quiry into the maximum that would be available in the circumstances of the particular juvenile before the court. The intervening history supports this reading.
With the Sentencing Reform Act of 1984 (chapter II of the Comprehensive Crime Control Act of 1984, Pub. L. 98-473, § 214(a), 98 Stat. 2013), §5037 was rewritten. As § 5037(c)(1)(B), its relevant provision became “the maximum term of imprisonment that would be authorized by section 3581(b) if the juvenile had been tried and convicted as an adult.” 18 U.S.C. §§ 5037(c)(1)(B), (c)(2)(B)(ii) (1982 ed., Supp. II) (emphasis added). The emphasized language was quickly deleted, however, by the Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. 99-646, § 21(a)(2), 100 Stat. 3596 (Technical Amendments Act), resulting in the present statutory text, “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” It thus lost the reference to § 3581(b), which would have guided the sentencing court in identifying the “authorized” term of imprisonment.
R. L. C. argues that this loss is highly significant. Section 3581(b) was, and still is, part of a classification system adopted in 1984 for use in setting the incidents of punishment for federal offenses by reference to letter grades reflecting their relative seriousness. One provision, for example, sets the maximum period of supervised release for each letter grade. §3583. Section 3581(b) sets out the maximum term of imprisonment for each letter grade, providing, for instance, that the authorized term of imprisonment for a class C felony is not more than 12 years, for a class D not more than 6, and for a class E not more than 3.
The deletion of the reference to § 3581(b) with its specific catalog of statutory máximums would seem to go against the Government’s position. Since, for example, a juvenile who had committed what would have been an adult class E felony would apparently have been subject to three years of detention, because § 3581(b) “authorized” up to three years of imprisonment for an adult, the deletion of the reference to § 3581(b) would appear to indicate some congressional intent to broaden the range of enquiry when determining what was authorized.
The Government, however, finds a different purpose, disclosed in the section-by-section analysis prepared by the Department of Justice to accompany the bill that became the Technical Amendments Act. The Department’s analysis included this explanation for the proposal to delete the reference to § 3581(b): “Because of the effect of 18 U. S. C. § 3559(b)(2), deleting the reference to 18 U. S. C. § 3581(b) will tie the maximum sentences for juveniles to the maximum for adults, rather than making juvenile sentences more severe than adult sentences.” 131 Cong. Rec. 14177 (1985). Congress had enacted § 3559 to reconcile the new sentencing schedule, providing for the incidents of conviction according to the offense’s assigned letter grade, with the pre-existing body of federal criminal statutes, which of course included no assignments of letter grades to the particular offenses they created. Section 3559(a) provides a formula for assigning the missing letter based on the maximum term of imprisonment set by the statute creating the offense. Thus, as it stood at the time of the Technical Amendments Act, it read:
“(a) Classification
“An offense that is not specifically classified by a letter grade in the section defining it, is classified—
“(1) if the maximum term of imprisonment authorized is—
“(A) life imprisonment, or if the maximum penalty is death, as a Class A felony;
“(B) twenty years or more, as a Class B felony;
“(C) less than twenty years but ten or more years, as a Class C felony;
“(D) less than ten years but five or more years, as a Class D felony;
“(E) less than five years but more than one year, as a Class E felony;
“(F) one year or less but more than six months, as a Class A misdemeanor;
“(G) six months or less but more than thirty days, as a Class B misdemeanor;
“(H) thirty days or less but more than five days, as a Class C misdemeanor; or
“(I) five days or less, or if no imprisonment is authorized, as an infraction.
“(b) Effect of classification
“An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation except that:
“(1) the maximum fine that may be imposed is the fine authorized by the statute describing the offense, or by this chapter, whichever is the greater; and
“(2) the maximum term of imprisonment is the term authorized by the statute describing the offense.” 18 U. S. C. §3559 (1982 ed., Supp. II).
The Government explains that limiting the length of a juvenile detention to that authorized for an adult under § 3581(b) could in some circumstances have appeared to authorize a longer sentence than an adult could have received, when the offense involved was assigned no letter grade in its defining statute. Thus an offense created without letter grade and carrying a maximum term of two years would be treated under § 3559(a) as a class E felony. Section 3581(b) provides that a class E felony carried a maximum of three years. Regardless of that classification, §3559(b)(2) would certainly preclude sentencing any adult offender to more than two years. Tension would arise, however, where a juvenile had committed the act constituting the offense. Insofar as § 5037(c) capped the juvenile detention by reference to what was authorized for an adult, the maximum would have been two years; but insofar as it capped it by reference to what was authorized by § 3581(b), the limit might have appeared to be three. It was to break this tension, according to the Government, that the reference to § 3581(b) was deleted guaranteeing that no juvenile would be given detention longer than the maximum adult sentence authorized by the statute creating the offense. The amendment also, the Government says, left the law clear in its reference to the statute creating the offense as the measure of an “authorized” sentence. This conclusion is said to be confirmed by a statement in the House Report that the amendment “delet[es an] incorrect cross-referenc[e],” H. R. Rep. No. 99-797, p. 21 (1986), which, the Government argues, “suggests that no substantive change was intended.” Brief for United States 20, n. 4.
We agree with the Government’s argument up to a point. A sentencing court could certainly have been confused by the reference to § 3581(b). A sentencing judge considering a juvenile defendant charged with an offense bearing no letter classification, and told to look for “the maximum term of imprisonment that would be authorized [according to letter grade] by section 3581(b),” would have turned first to § 3559(a) to obtain a letter classification. The court perhaps would have felt obliged to ignore the provision of § 3559(b) that “the maximum term of imprisonment is the term authorized by the statute describing the offense” in favor of a longer term provided for by the appropriate letter grade in § 3581(b). Indeed, the sentencing judge would have been faced with this puzzle in virtually every case, since the system of classifying by letter grades adopted in 1984 was only to be used in future legislation defining federal criminal offenses. See Brief for United States 16. No federal offense on the books at the time the Sentencing Reform Act of 1984 was adopted carried a letter grade in its defining statute, and Congress has used the device only rarely in the ensuing years.
Thus, while it included a reference to § 3581(b), § 5037(c) was ambiguous. This ambiguity was resolved by an amendment that, absent promulgation of the Guidelines, might have left the question of the “authorized” maximum term of imprisonment to be determined only by reference to the penalty provided by the statute creating the offense, whether expressed as a term of years or simply by reference to letter grade. The legislative history does not prove, however, that Congress intended “authorized” to refer solely to the statute defining the offense despite the enactment of a statute requiring application of the Sentencing Guidelines, a provision that will generally provide a ceiling more favorable to the juvenile than that contained in the offense-defining statute.
Indeed, the contrary intent would seem the better inference. The Justice Department analysis of the Criminal Law and Procedure Technical Amendments Act of 1986, upon which the Government relies, went on to say that “deleting the reference to 18 U. S. C. § 3581(b) will tie the maximum sentences for juveniles to the maximum for adults, rather than making juvenile sentences more severe than adult sentences.” 131 Cong. Rec. 14177 (1985). This is an expression of purpose that today can be achieved only by reading “authorized” to refer to the maximum period of imprisonment that may be imposed consistently with 18 U. S. C. § 3553(b). That statute provides that “[t]he court shall impose a sentence . . . within the range” established for the category of offense as set forth in the Guidelines, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” § 3553(b).
The point is reinforced by other elements of the legislative history. The Senate Report accompanying the 1986 Technical Amendments Act states that the amendment “makes clear that juvenile sentences are to be of equal length as those for adult offenders committing the same crime.” S. Rep. No. 99-278, p. 3 (1986). This, in turn, reflects the statement in the Senate Report accompanying the Sentencing Reform Act, that the changes in juvenile sentencing law were included “in order to conform it to the changes made in adult sentencing laws.” S. Rep. No. 98-225, p. 155 (1983). The most fundamental of the Sentencing Reform Act’s changes was, of course, the creation of the Sentencing Commission, authorized to promulgate the guidelines required for use by sentencing courts. It hardly seems likely that Congress adopted the current § 5037(c) with a purpose to conform juvenile and adult maximum sentences without intending the recently authorized Guidelines scheme to be considered for that purpose. The legislative history thus reinforces our initial conclusion that § 5037 is better understood to refer to the maximum sentence permitted under the statute requiring application of the Guidelines.
C
We do not think any ambiguity survives. If any did, however, we would choose the construction yielding the shorter sentence by resting on the venerable rule of lenity, see, e. g., United States v. Bass, 404 U. S. 336, 347-348 (1971), rooted in “ ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should,’ ” id., at 348 (quoting H. Friendly, Benchmarks 209 (1967)). While the rule has been applied not only to resolve issues about the substantive scope of criminal statutes, but to answer questions about the severity of sentencing, see Bifulco v. United States, 447 U. S. 381, 387 (1980), its application is unnecessary in this case, since “we have always reserved lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.” Moskal v. United States, 498 U. S. 103, 108 (1990) (citation omitted).
Ill
We hold, therefore, that application of the language in § 5037(c)(1)(B) permitting detention for a period not to exceed “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult” refers to the maximum length of sentence to which a similarly situated adult would be subject if convicted of the adult counterpart of the offense and sentenced under the statute requiring application of the Guidelines, § 3553(b). Although determining the maximum permissible sentence under § 5037(c)(1)(B) will therefore require sentencing and reviewing courts to determine an appropriate Guideline range in juvenile-delinquency proceedings, we emphasize that it does not require plenary application
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204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer: |
songer_adminrev | J | 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".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DARLING & COMPANY, Respondent.
No. 17394.
United States Court of Appeals Seventh Circuit.
Jan. 6, 1970.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Robert A. Giannasi, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, and Madge F. Jefferson, Attys., N. L. R. B., Washington, D. C., for petitioner.
J. Ternell Vaughan, Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for respondent.
Before KNOCH, Senior Circuit Judge, and FAIRCHILD and KERNER, Circuit Judges.
KNOCH, Senior Circuit Judge.
This matter is before us on application of the National Labor Relations Board filed pursuant to § 10(e) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq., § 160(e), for enforcement of its Order of April 4, 1968, reported at 170 NLRB No. 127, in which the Board directed the respondent, Darling & Company, to cease and desist from specific violations found and from interfering in any similar manner with the rights of its employees under § 7 of the Act. The Board found that respondent violated § 8(a) (1), (3) & (4) » of the Act by withholding severance pay from one group of employees while granting it to another and further violated § 8(a) (1) by announcing its decision to do so. The Board directed respondent further to grant severance pay to the production employees on the same terms (with interest) as was awarded other employees on the payroll at the East St. Louis plant at the time that plant closed on March 31, 1967, with notices to be sent to the last known addresses of all the employees.
The difficulties between respondent and International Chemical Workers Union, AFL-CIO, Local No. 127, which represents the production employees, go back to 1965 when extended contract negotiations culminated in a lockout of the production employees on December 16, 1965. One of the production employees, Lewis Lane, as an individual, filed an unfair labor practice charge with the Board on January 4, 1966, and on March 30, 1967, the Trial Examiner found that the lockout had been unlawful and recommended an order directing respondent to make whole all the employees from the first day of the lockout. Subsequently on May 23, 1968, the Board held otherwise that this lockout had been a legitimate economic weapon and did not constitute an unfair labor practice. Mr. Lane’s petition to review that decision is pending before the Court of Appeals for the District of Columbia (#22,357) in which respondent has been allowed to intervene.
In the meantime, however, negotiations continued after the lockout and an agreement was reached February 15, 1966, which was to remain in force until December 1,1967 and to be renewed from year to year in the absence of written notice.
In the proceedings before the Trial Examiner respecting the lockout, Roy L. Thompson, a representative of the Chemical Workers Union testified that as part of that agreement his Union undertook not to file charges because of the December 16, 1965 shutdown, but that the action of an individual member was beyond Union control.
The crane operators and maintenance electricians at respondent’s East St. Louis plant were represented by the International Brotherhood of Electrical Workers, Local No. 309. The maintenance millwrights and carpenters were represented by the United Brotherhood of Carpenters and Jointers, Local No. 169.
Robert S. Rowe, Labor Relations Attorney for respondent, testified that on December 5, 1966, he notified representatives of all three unions that on failure of attempts then being made to sell the East St. Louis plant as a going concern the plant would be shut down. On or about February 14, 1967, he wrote the three unions that a complete shutdown of operations was contemplated on or about April 1, 1967. The Trial Examiner found that the plant was closed on March 31, 1967, concededly for purely economic reasons. He also found that respondent had made extensive efforts to find other employment for its employees.
On the morning of March 30, 1967, representatives of respondent met with representatives of the IBEW and Carpenters unions and agreed to grant severance pay to the employees they represented. The respondent stresses the fact that counsel for the Carpenters wrote requesting that meeting to bargain on specific proposals including severance pay, and that at the meeting with the Carpenters and IBEW together as had been the practice frequently in the past, it was tacitly understood that the aforesaid counsel was speaking for both unions.
In the afternoon at a meeting with the Chemical Workers, the Union President, Silas Watson, asked whether the respondent would give the production workers whom his Union represented similar severance pay. There was a conflict in the testimony as to the exact reply made by Mr. Rowe.
Mr. Rowe testified that he said the company had decided that it was not going to do so “at that time”; that the company wanted to defer the question on severance pay for the people in this bargaining unit until it ascertained what liability in connection with the unfair labor practice hearing would result (estimates ran as high as $50,000) and the company felt it wanted to know just what the economic situation was before it came to a decision on a severance pay arrangement. [The decision of the Trial Examiner, as it happened, issued the following day after the meeting with the Chemical Workers Union.] He also testified that he indicated if it developed there was no back pay liability, he felt that the company would treat the production employees on the same basis as those in the other two bargaining units; that the decision on severance pay at that time was not his to make. He denied ever saying that if the company were found liable for back pay, it would not give severance pay. Mr. Watson testified that Mr. Rowe had said that if the company did not “win” the case, it would not give severance pay. The Trial Examiner credited Mr. Rowe’s evidence as to the content of his statement.
The respondent contrasts the facts respecting the other two unions with the absence of any written or oral request from the Chemical Workers specifically to bargain over severance pay prior or subsequent to the meeting with Mr. Rowe. However, there was testimony by Mr. Thompson of the Chemical Workers respecting an exchange of telephone calls with respondent’s Plant Manager, Lee Stahlman, to set up a meeting to discuss the plant closing and related matters. Mr. Stahlman did not appear as a witness. The Trial Examiner found Mr. Thompon’s evidence credible. As indicated such a meeting was held on March 30, 1967 and the issue of severance pay was raised.
No severance pay has been given to the production employees. Such pay has been given to most of the employees represented by the other two unions.
The action of the respondent thus penalized employees represented by the one union involved in the pending Board proceedings on the lockout. Regardless of the asserted lack of intent to do so, respondent’s actions must have discouraged affiliation with the Chemical Workers. Radio Officers’ Union v. National Labor Relations Board, 1954, 347 U.S. 17, 45 et seq., 74 S.Ct. 323, 98 L.Ed. 455. Respondent would distinguish this case and similar cases on the ground that they deal with inherently discriminatory practices which require no specific evidence of an employer’s motive to discourage union membership on the ground that one is presumed to intend the foreseeable consequences of his conduct. We do not agree that the facts of this case take it out of the scope of Radio Officers. Nor do we agree that this case is distinguished from NLRB v. Great Dane Trailers, Inc., 1967, 388 U.S. 26, 33, 87 S.Ct. 1792, 18 L.Ed.2d 1027, on which the Trial Examiner relied because the vacation benefits there given to non-strikers and denied strikers accrued under a collective bargaining contract in a strike climate.
The respondent sees no possible threat in the announcement of a mere postponement in consideration of the issue, especially as the Union was powerless to withdraw the charge had it so desired. The respondent must have foreseen that its action would inhibit filing charges and testifying in support of them. Section 8(a) (4) has long been construed as designed to prevent “the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.” John Hancock Mutual Life Insurance Company v. NLRB, 1951, 89 U.S.App. D.C. 261, 191 F.2d 483, 485.
It is respondent’s view that had punishment of the Union been an objective a flat refusal even to consider severance pay would have been more logical. We believe such a course of action would have represented a difference in degree rather than in kind.
The respondent also contends that even if there was an inference of a threat it was far outweighed by the clear business justification for the delay. But, as the Board noted, only employees represented by the Union whose member had filed the charge were made to bear the economic burden of the possible adverse results of that charge.
We do not agree with the respondent that there is an inconsistency in the Trial Examiner’s finding that Mr. Rowe did not use the words “win” or “lose” with reference to the outcome of the then pending Board case and then going on to conclude that his statements carried the intendment that if the respondent lost the pending case it would not grant severance pay to the production employees. The Trial Examiner said that Mr. Rowe was experienced in labor-management negotiations and it was most unlikely he would use the words “win” or “lose” in this discussion but that his admitted statements were sufficiently plain.
The respondent is still doing business at its other plants and to limit the negative “desist” aspects of the Order, as respondent asks, to the closed East St. Louis plant would render those aspects of the Order a nullity.
We do not read the Order as directing severance pay “in the same amounts” as respondent complains, pointing out that the vacation benefits which figured in the computations are not identical for all three unions, for example. The Order says “on the same terms and in the same amounts” as the other employees which merely calls for computation on the same non-discriminatory basis. Problems arising in such computation may be resolved in the compliance stage. The possibility of such problems does not justify denial of enforcement of the Board’s Order. NLRB v. Acme Mattress Co., 7 Cir., 1951, 192 F.2d 524, 528. The Order of the Board will be
Enforced.
. [§ 7] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section [8] (a) (3).
. § 8(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7] of this title;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section [6], an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization :
* * * * *
(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subehapter.
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: |
sc_lcdispositiondirection | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
GRAVITT, EXECUTRIX et al. v. SOUTHWESTERN BELL TELEPHONE CO. et al.
No. 76-1036.
Decided April 25, 1977
Per Curiam.
This tort action was removed from the Texas state courts to the United States District Court on the grounds of diversity of citizenship but was remanded as having been “improperly removed” when it seemed that there was not complete diversity among the parties. The Court of Appeals for the Fifth Circuit, by mandamus, ordered the District Court to vacate its remand order because the latter had employed erroneous principles in concluding that it was without jurisdiction.
The Court of Appeals erred. Title 28 U. S. C. § 1447 (c) provides for remanding a removed action when the district court determines that “the case was removed improvidently and without jurisdiction”; and when a remand has been ordered on these grounds, 28 U. S. C. § 1447 (d) unmistakably commands that the order “remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .” The District Court’s remand order was plainly within the bounds of § 1447 (c) and hence was unreviewable by the Court of Appeals, by mandamus or otherwise. Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336 (1976), is not to the contrary, for there the District Court remanded “on grounds wholly different from those upon which § 1447 (c) permits remand." Id., at 344. Thermtron did not question but re-emphasized the rule that § 1447 (c) remands are not reviewable.
The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
sc_decisiontype | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
RICE et al. v. SANTA FE ELEVATOR CORP. et al.
NO. 470.
Argued February 13, 14, 1947. —
Decided May 5, 1947.
Lee A. Freeman argued the cause and filed a brief for petitioners in No. 470.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for petitioners in No. 472. With him on the brief was George F. Barrett, Attorney General.
Leo F. Tierney argued the cause for respondents. With him on the brief were Ferre C. Watkins, Charles F. Meyers, Floyd E. Thompson, Frederick Mayer, Carl Meyer and Louis A. Kohn.
Acting Solicitor General Washington, Assistant Attorney General Berge, Robert C. Barnard, W. Carroll Hunter and Lewis A. Sigler filed a brief for the United States, as amicus curiae, urging affirmance.
Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Black.
Respondents in these two cases are warehousemen engaged in the business of operating public warehouses for the storage of grain in Illinois. Their warehouses are operated under licenses issued by the Secretary of Agriculture pursuant to the United States Warehouse Act, 39 Stat. 486, as amended, 7 U. S. C. § 241 et seq. The Rice partnership, one of the petitioners, is an owner, shipper, and dealer in grain and is a customer of respondents. The Illinois Commerce Commission, another petitioner, has certain regulatory jurisdiction, to which we will later refer, over public grain warehouses and other public utility companies.
In 1944 Rice filed a complaint with the Commission, charging respondents with maintaining unjust, unreasonable, and excessive rates and charges contrary to the Illinois Public Utilities Act, Ill. Rev. Stats. 1945, oh. Ill 2/3. It charged them with discrimination in storage rates in favor of the Federal Government and its agencies and against other customers, contrary to the Public Utilities Act and the Illinois Grain Warehouse Act, Ill. Rev. Stats. 1945, ch. 114, § 189 et seq. It alleged that respondents were both warehousemen and dealers in grain and by reason of those dual and conflicting positions had received undue preferences and advantages to the detriment of and in discrimination against petitioners and other customers of respondents, all in violation of provisions of the Public Utilities Act, the Grain Warehouse Act, or the Illinois Constitution of 1870, Article XIII. It charged respondents with having failed to provide reasonable, safe, and adequate public grain warehouse service and facilities, with issuing securities, with abandoning service, and with entering into various contracts with their affiliates without prior approval of the Commission; with rendering storage and warehousing services without having filed and published their rates; with operating without a state license; and with mixing public grain with grains of different grades — all in violation of provisions of the Public Utilities Act or the Grain Warehouse Act. Among the remedies sought were the fixing of just, reasonable, and non-discriminatory rates, the prohibition of unlawful discriminatory practices, the establishment of reasonable, safe and adequate storage and warehousing service, and the assessment of penalties for violations of Illinois law, including the cancellation of grain warehouse licenses.
Respondents moved to dismiss on the ground that the United States Warehouse Act superseded the authority of the Commission to regulate in the manner sought by the complaint. The Commission denied the motion and set the cause for a hearing on the merits. Thereupon respondents brought these suits in the District Court to enjoin further proceedings before the Commission and to enjoin the Attorney General of Illinois from instituting any proceedings against respondents to enforce any order of the Commission in the matter. Motions of petitioners to dismiss were granted. On appeal the Circuit Court of Appeals reversed, holding that the United States Warehouse Act superseded state regulation of respondents as to the matters presented in petitioners’ complaint. 156 F. 2d 33. The cases are here on petitions for writs of cer-tiorari which we granted because of the public importance of the questions presented.
The United States Warehouse Act, as originally enacted in 1916 (39 Stat. 486), made federal regulation in this field subservient to state regulation. It provided in § 29 that “nothing in this Act shall be construed to conflict with, or to authorize any conflict with, or in any way to impair or limit the effect or operation of the laws of any State relating to warehouses, warehousemen . . . .” And § 6 required an applicant for a federal warehouse license to provide a bond “to secure the faithful performance of his obligations as a warehouseman” under state as well as under federal law.
In 1931 Congress amended the Act. 46 Stat. 1463. Section 29 was amended to provide that although the Secretary of Agriculture “is authorized to cooperate with State officials charged with the enforcement of State laws relating to warehouses, warehousemen,” and their personnel, “the power, jurisdiction, and authority conferred upon the Secretary of Agriculture under this Act shall be exclusive with respect to all persons securing a license hereunder so long as said license remains in effect.” Section 6 was amended to omit the requirement that the bond be conditioned on compliance with requirements of state law.
First. The chief matters which are the basis of the complaint before the Commission are treated as follows by the Illinois law and by the Federal Act:
(1) Just and reasonable rates. The complaint charges that respondents’ rates are unjust and unreasonable. Under the Illinois statute public utility rates must be just and reasonable; and the Commission after a hearing may fix rates which meet that standard. §§ 32, 36, 41, Public Utilities Act. The Secretary of Agriculture is authorized by the Federal Act to license warehousemen on condition that they conform to the requirements of the Act and the rules and regulations prescribed thereunder. §§ 4, 9. Every receipt of a licensed warehouse must disclose “the rate of storage charges.” § 18 (e). Before a license is granted the applicant must file his proposed rates with the Secretary. Reg. 5, § 3. He must also file any proposed changes in rates before making them effective. Id. Rates which are “unreasonable or exorbitant” are prohibited. Id. And the Secretary may, after hearing, suspend or revoke the license if “unreasonable or exorbitant charges have been made for services rendered.” §25; Reg. 2, § 7.
(2) Discrimination. The complaint alleges that respondents discriminate against the public and in favor of the Federal Government and its agencies by granting the latter preferential storage rates. The power of the Illinois Commission to fix rates, to which we have referred, includes the power to eliminate discriminatory rates. And see Grain Warehouse Act § 15. The Federal Act requires the publication and disclosure of licensed warehousemen’s rates, as we have seen. Section 13 of the Federal Act makes it the duty of a licensed warehouseman to receive agricultural products for storage “in the usual manner in the ordinary and usual course of business, without making any discrimination between persons desiring to avail themselves of warehouse facilities.” And by § 25 the Secretary is granted authority to suspend or revoke any license of a warehouseman “for any violation of or failure to comply with any provision of this Act . . . .”
(3) Dual position of warehousemen. The complaint charged violations of Illinois law by acts of respondents in storing and dealing in their own grain while storing grain for the public. See Hannah v. People, 198 Ill. 77, 64 N. E. 776. The Federal Act requires every receipt issued for agricultural products by a licensed warehouseman to disclose “if the receipt be issued for agricultural products of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership . . . .” § 18 (i). In addition, the receipts for grain must contain “in event the relationship existing between the warehouseman and any depositor is not that of strictly disinterested custodianship, a statement setting forth the actual relationship . . . Reg. 4, § 1 (a) (3). Moreover, § 5a (7) of the Commodity Exchange Act, 49 Stat. 1491, 1498, 7 U. S. C. § 7a (7) provides that receipts issued under the United States Warehouse Act “shall be accepted in satisfaction of any futures contract . . . without discrimination and notwithstanding that the warehouseman issuing such receipts is not also licensed as a warehouseman under the laws of any State or enjoys other or different privileges than under State law . . . .”
(4) Mixing high quality public grain with inferior grain owned by respondents, delay in loading grain. The complaint charges that these practices are part of the abuses flowing from the conflicting positions of respondents as public grain warehousemen and dealers in grain. They are alleged to violate the rule of Hannah v. People, supra, and provisions of the Public Utilities Act which prohibit any preference or advantage to any person and which disallow any act of prejudice or disadvantage to any person. § 38. And see Grain Warehouse Act § 17. Section 13 of the Federal Act, as we have seen, provides that every licensed warehouseman “shall receive for storage” any agricultural product “without making any discrimination between persons desiring to avail themselves of warehouse facilities.” Section 15 provides for the inspection and grading of fungible agricultural products by federal inspectors. Section 16 permits licensed warehousemen “if authorized by agreement or by custom” to mingle fungible products with other products “of the same kind and grade.” Section 16 likewise prohibits the mixing of fungible products “of different grades.” Section 30 provides fine and imprisonment for any person who fraudulently classifies, grades, or weighs any agricultural product stored under the provisions of the Act. Section 21 provides that a warehouseman in absence of some lawful excuse shall deliver "without unnecessary delay” the stored products on proper demand.
(5) Sacrificing or rebating storage charges, retaining desirable transit tonnage, utilizing preferred storage space. These practices, charged in the complaint, are alleged to be other manifestations of the evils of a public warehouseman also being a dealer in grain. They are said to be vio-lative of the principles announced in Central Elevator Co. v. People, 174 Ill. 203, 208-209, 51 N. E. 254, 256. And these practices are said to be acts of prejudice or disadvantage outlawed by § 38 of the Public Utilities Act which we have already mentioned. On the other hand, the Federal Act, as we have seen, requires every licensed warehouseman to "receive for storage” any agricultural product “without making any discrimination between persons desiring to avail themselves of warehouse facilities.” § 13.
(6) Maintenance of unsafe and inadequate elevators; inadequate and inefficient warehouse service. The complaint alleges that as a result of these practices fire insurance premiums have become exorbitant and prohibitive; that owners of grain have suffered damages due to the deterioration of grain. The Illinois Commission is granted broad powers over the maintenance of facilities which are adequate and efficient (§§ 32, 49, Public Utilities Act) including the power to order the making of additions, extensions, repairs, improvements, or changes. Id., § 50. By § 3 of the Federal Act the Secretary of Agriculture is authorized “to determine whether warehouses for which licenses are applied for or have been issued under this Act are suitable for the proper storage of any agricultural product . . . .” Section 3 also grants the Secretary authority to prescribe the duties of warehousemen “with respect to their care of and responsibility for agricultural products stored” in licensed warehouses. No license will be granted if the warehouse is found “not suitable for the proper storage of grain.” Reg. 2, § 5. Every warehouseman must exercise “such care in regard to grain in his custody as a reasonably careful owner would exercise under the same circumstances and conditions.” Reg. 5, § 8. Every warehouseman must keep “his warehouse reasonably clean at all times and free from straw, rubbish, or accumulations of materials that will increase the fire hazard or interfere with the handling of grain.” Reg. 5, 1 15.
(7) Operating without a state license. The complaint charges that respondents may not lawfully operate without a license from Illinois. See Grain Warehouse Act § 3. The Federal Act gives the Secretary of Agriculture authority to issue licenses on terms and conditions specified. §§3,4,5.
(8) Abandonment of warehousing service. The complaint alleges that respondents have abandoned services without consent of the Illinois commission. Approval of the Commission to abandon or discontinue service is required. § 49a, Public Utilities Act. Licenses issued under the Federal Act “shall terminate as therein [§§ 4, 9] provided, or in accordance with the terms of this Act and the regulations thereunder . . . § 5. By § 25 the Secretary is authorized to suspend or revoke a license for any violation of the Act or the regulations. Among the grounds for revocation specified in the regulations is ceasing to conduct the licensed warehouse. Reg. 2, § 7.
(9) Failure to file and publish rate schedules; rendering warehousing service without filing and publishing schedules. These matters, charged in the complaint, are regulated by §§33 and 35 of the Public Utilities Act. Under the Federal Act a warehouseman must file his rate schedules before a license issues; proposed changes in them must be filed before made; the current schedule of charges must be posted in a conspicuous place in the principal office where receipts issued by the warehouseman are delivered to the public. Reg. 5, § 3; Reg. 2, § 6.
As we have seen, Congress in 1931 made the “power, jurisdiction, and authority” of the Secretary of Agriculture conferred by the Act “exclusive with respect to all persons securing a license” under the Act, so long as the license remains in effect. It is argued by respondents that § 29 should be construed to mean that the subjects which the Secretary’s authority touches may not be regulated in any way by any state agency, though the scope of federal regulation is not as broad as the regulatory scheme of the State and even though there is or may be no necessary conflict between what the state agency and the federal agency do. On the other hand, petitioners argue that since the area taken over by the Federal Government is limited, the rest may be occupied by the States; that state regulation should not give way unless there is a precise coincidence of regulation or an irreconcilable conflict between the two.
It is clear that since warehouses engaged in the storage of grain for interstate or foreign commerce are in the federal domain, United States v. Hastings, 296 U. S. 188, Congress may, if it chooses, take unto itself all regulatory authority over them (see New York Central R. Co. v. New York & Pa. Co., 271 U. S. 124), share the task with the States, or adopt as federal policy the state scheme of regulation. See Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 430-436. The question in each case is what the purpose of Congress was.
Congress legislated here in a field which the States have traditionally occupied. See Munn v. Illinois, 94 U. S. 113; Davies Warehouse Co. v. Bowles, 321 U. S. 144, 148-149. So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611; Allen-Bradley Local v. Wisconsin Employment Board, 315 U. S. 740, 749. Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm’n, 250 U. S. 566, 569; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U. S. 52. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U. S. 439; Charleston & W. C. R. Co. v. Varnville Co., 237 U. S. 597; New York Central R. Co. v. Winfield, 244 U. S. 147; Napier v. Atlantic Coast Line R. Co., supra. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U. S. 538. It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide. Townsend v. Yeomans, 301 U. S. 441; Kelly v. Washington, 302 U. S. 1; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177; Union Brokerage Co. v. Jensen, 322 U. S.202.
A forceful argument is made here for the view that the ! Illinois regulatory scheme should be allowed to supplement the Federal Act and that the Illinois Commission should not be prevented from acting on any of the matters covered by Rice’s complaint, unless what the Commission ¡ does runs counter in fact to the federal policy. That is to say, the actual operation of the state system may be harmonious with the “measure of control” over ware-housemen which the Federal Act imposes. Federal Compress Co. v. McLean, 291 U. S. 17, 23. That, it is said, can only be determined after the Illinois Commission has acted.
That argument is illustrated in several ways. The Illinois Commission may fix rates; the Secretary of Agriculture cannot. He may, to be sure, suspend or revoke licenses if unreasonable or exorbitant charges are made. If the Commission fixes unreasonable or exorbitant rates, there will be a conflict with the Federal Act and the state rate order must fall. But until it is known what the Commission will do, no conflict with the Federal Act can be shown. If indeed it reduces rates, as may be presumed, no conflict with the Federal Act will likely exist. Another illustration concerns the dual position of the warehouse-men. It is pointed out that all the Federal Act requires is disclosure; that the more basic state policy of uprooting the practice of public warehousemen storing and dealing in their own grain is not inconsistent with the federal policy of disclosure. Another illustration relates to the preferential and discriminatory practices in connection with the rebate of storage charges, retention of desirable transit tonnage, and the utilization of preferred storage space. All the Federal Act requires is that warehousemen receive products for storage without making discrimina-tions between persons. What the Illinois Commission promulgates or requires, if the proceedings before it are allowed to go ahead, might indeed strengthen and bolster the federal regulatory scheme and in no way dilute, impair or oppose it. Such reasoning could be applied to each of the nine charges which we have summarized, even including, perhaps, the requirements for a state license and the filing and publishing of rate schedules. See Union Brokerage Co. v. Jensen, supra.
At first blush that construction of the Federal Act has great plausibility. It preserves intact the federal system of warehouse regulation, leaves the State free to protect local interests, and strikes down state power only in case what the State does in fact dilutes or diminishes the federal program.
But the special and peculiar history of the Warehouse Act indicates to us that such a construction would thwart the federal policy which Congress adopted when it amended the Act in 1931. Prior to that time, as we have pointed out, the Federal Act by reason of its express terms had been subservient to state laws relating to warehouses and warehousemen. Congress in 1931 found that condition unfavorable and undertook to change it. If Congress had done no more than to eliminate from § 29 the language which resulted in the Act’s subservience, there would be a strong case for holding that state regulatory systems were not to be affected unless they collided with the Act. That construction would receive reinforcement from the provision in § 29 that the Secretary “is authorized to cooperate with State officials charged with the enforcement of State laws” relating to warehouses and warehousemen. Cf. Union Brokerage Co. v. Jensen, supra, p. 209. But Congress did not choose that simple expedient. It went further and added to § 29 the mandatory words “the power, jurisdiction, and authority” of the Secretary conferred under the Act “shall be exclusive with respect to all persons” licensed under the Act. And the original provisions of § 6 requiring a bond from licensees securing the faithful performance of their obligations as warehousemen under state law were deleted.
These actions were explained in the Committee Reports.
The previous subservience of the Act to state law was said to have militated “against the full value of Federal warehouse receipts for collateral purposes.” S. Rep. No. 1775, 71st Cong., 3d Sess., p. 2. The amendment to § 6 followed “naturally” the revision of § 29. Id. The amendment to § 29 was designed to make “the Federal act independent of State laws” and to “place the Federal act on its own bottom.” Id. While a warehouseman need not operate under the Act, if he chose to be licensed under it, he would then “be authorized to operate without regard to State acts and be solely responsible to the Federal act.” Id. Warehousemen, having made their choice to operate under state or federal law, should “then be permitted to operate without interference on the part of any agency.” Id., pp. 2-3. Or, as stated by the House Committee, the purpose of the amendment to § 29 was to make the Act “independent of any State legislation on the subject.” H. R. Rep. No. 2314, 70th Cong., 2d Sess., p. 4.
That is strong language. It makes unambiguous what was meant by the deletion from § 6 of any requirement that federal licensees comply with state laws regulating warehousemen. It makes clear the significance to be attached to the special wording of § 29. The amendments to § 6 and § 29, read in light of the Committee Reports, say to us in plain terms that a licensee under the Federal Act can do business “without regard to State acts”; that the matters regulated by the Federal Act cannot be regulated by the States; that on those matters a federal licensee (so far as his interstate or foreign commerce activities are concerned) is subject to regulation by one agency and by one agency alone. That is to say, Congress did more than make the Federal Act paramount over state law in the event of conflict. It remedied the difficulties which had been encountered in the Act’s administration by terminating the dual system of regulation. Cf. First Iowa Hydro-Electric Coop. v. Federal Power Commission, 328 U. S. 152. As stated by the Supreme Court of South Dakota, warehousemen electing to come under the Federal Act need serve but one master, and that one the federal agency. In re Farmers Cooperative Assn., 69 S. D. p. 202, 8 N. W. 2d p. 562. The cooperation which the Secretary was authorized to undertake with state officials was cooperation in harmonizing the exclusively federal and the exclusively state systems of regulation.
In this view of the Act, Congress formulated a policy on numerous phases of the warehouse business. The policy on rates was not the fixing of them but control over them through issuance, suspension, or revocation of licenses. Dual or conflicting positions of warehousemen were regulated by disclosure, by general prohibitions against discrimination between customers, by control over the license. Unsafe and inadequate warehouses were protected by the power of the Secretary to determine whether the warehouses of applicants or licensees were suitable. Mixing of grain was authorized under specified conditions and prohibited under others. On each of the nine matters charged in the complaint and listed above Congress legislated. And as we read the Act, Congress in effect said that the policy which it adopted in each of the nine was exclusive of all others; and that if a licensed warehouseman complied with each requirement, he did all that he need do. He could not be required by a State to do more or additional things or conform to added regulations, even though they in no way conflicted with what was demanded of him under the Federal Act. We recently noted that Congress can act so unequivocally as to make clear that it intends no regulation except its own. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U. S. 767. In these fields Congress has done just that by the 1931 amendments.
Thus, by eliminating dual regulation and substituting regulation by one agency, Congress sought to achieve “fair and uniform business practices” which, as noted in Federal Compress Co. v. McLean, supra, p. 23, was the purpose of the amended Act.
The test, therefore, is whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act. If it is, the federal scheme prevails though it is a more modest, less pervasive regulatory plan than that of the State. By that test each of the nine matters we have listed is beyond the reach of the Illinois Commission, since on each one Congress has declared its policy in the Warehouse Act. The provisions of Illinois law on those subjects must therefore give way by virtue of the Supremacy Clause. U. S. Const., Art. VI, Cl. 2.
Second. There were matters, other than those we have mentioned, which were charged in the complaint before the Commission.
(1) Failure to secure prior approval of the Illinois Commission for management, construction, engineering, supply, financial and other contracts between respondents and affiliates. Such approval is said to be required by § 8 (a) (3) of the Public Utilities Act.
(2) Failure to secure prior approval of contracts and leases between respondents and other public utilities. Such approval is said to be required by § 27 of the Public Utilities Act.
(3) Failure to secure approval of issuance of securities payable at periods of more than twelve months after date. Such approval is said to be required by § 21 of the Public Utilities Act.
These regulatory measures, it is said, are designed to prevent unwarranted drains on utility funds or the creation of unsound financial structures which would affect the ability of warehousemen to render adequate service at reasonable rates.
The United States Warehouse Act contains no provisions relating expressly to these three matters. And we are told that the Secretary of Agriculture has made no attempt to exercise any jurisdiction over them. But possibilities of conflict and repugnancy are conjured up. It is stated, for example, that the Secretary might determine that a warehouseman could not offer suitable warehouse service without an addition to his warehouse, that the financing of an addition might require the warehouseman to issue securities, that state disapproval of the issue might prevent the licensee from making the required additions. But it will be time to consider such asserted conflicts between the State and Federal Acts when and if they arise. Any such objections are at this stage premature. Congress has not foreclosed state action by adopting a policy of its own on these matters. Into these fields it has not moved. By nothing that it has done has it preempted those areas. And see Federal Compress Co. v. McLean, supra, p. 23. In more ambiguous situations than this we have refused to hold that state regulation was superseded by a federal law. Penn Dairies, Inc. v. Milk Control Commission, 318 U. S. 261.
We accordingly affirm in part and reverse in part the judgment of the Circuit Court of Appeals and remand the cause to the District Court for proceedings in conformity with this opinion.
So ordered.
The Chicago Board of Trade was also joined as a defendant in the proceedings before the Illinois Commerce Commission. The issues raised concerning it are considered in the companion cases decided this day, Rice v. Board of Trade, and Illinois Commerce Commission v. Board of Trade, post, p. 247.
The preferences were alleged to have arisen from the practice of respondents in “(a) Mixing high quality public grain -with inferior grain owned or acquired by the defendant warehouseman to reduce grain delivered to the point of minimum quality within the established grain trade [sic], (b) Sacrificing part of storage charges to offset purchases and sales of grain and otherwise manipulating and rebating storage charges on grain stored in private warehouse space, (c) Furnishing transit tonnage to owners of public grain of the most undesirable type, while withholding for their own use the most desirable transit tonnage, thereby placing the owners of public grain at a distinct disadvantage in merchandising grain in storage, (d) Providing for storage of public grain in old wooden warehouses carrying exorbitant insurance premium rates, while storing the warehousemen’s own grain in modern warehouses -with reasonable insurance premium rates, (e) Unduly and imprudently delaying loading of grain after return of warehouse receipt issued by the particular warehouseman, the tender of proper charges and the receipt of instructions to load grain for delivery.”
Accord: In re Farmers Co-op. Assn., 69 S. D. 191, 8 N. W. 2d 557.
The Secretary of Agriculture who recommended the 1931 amendment to § 29 gave the following reasons:
“The amendment suggested relative to section 29 aims to make the Federal warehouse act independent of any State legislation on the subject. As the law now reads, it can be nullified by State legislation. There are conflicts at present between the State laws and the Federal act. For instance, under certain State laws warehousemen are permitted to ship the products from their warehouses to a terminal or other warehouse while the receipts are outstanding. The prime purpose of the Federal warehouse act is to make it possible to finance, properly, agricultural products while in storage. No banker can safely loan on a warehouse receipt representing a product to be in a certain warehouse when, as a matter of fact, it may be moved under authority of State law to some other and distant warehouse. The Federal warehouse act, as now worded, specifically prohibits removal of the product prior to the return of the receipts. This department emphatically believes that this requirement of the Federal act is sound and the banking fraternity generally shares that same feeling. It is at once apparent to you, of course, that if the Federal act may be nullified by State laws with respect to a feature as important as this that the value of Federal warehouse receipts might be destroyed. For that reason, then, we have suggested amending section 29 so as to make the Federal warehouse act independent of any State legislation on warehousing.”
Hearing before Senate Committee on Agriculture and Forestry on H. R. 7, 71st Cong., 3d Sess., p. 10. And see id., pp. 22-26.
Independent Gin & W. Co. v. Dunwoody, 40 F. 2d 1, arose under the law as originally enacted. It was a suit brought by warehousemen, who were licensed under the Federal Act, to enjoin officials of Alabama from enforcing provisions of Alabama warehouse law. These were provisions requiring payment of a graduated license or privilege tax, for the giving of a bond, for the obtaining of a license and for submission to state regulation concerning the suitability and adequacy of the warehouse structure, the character of records to be kept, the inspection, of the warehouse buildings and the audit of the books. Agr. Code Ala. 1927, §§ 388-407. The Federal Act was construed not to exclude such state regulation.
Section 2 of the Act includes in the definition of “warehouse” every building “in which any agricultural product is or may be stored for interstate or foreign commerce . . . .”
The regulations are contained in 7 C. F. R., Part 102.
See note 2, supra.
The regulations promulgated under the Federal Act implement these provisions. Reg. 5, § 12 provides that licensed warehousemen shall accept grain for storage and deliver grain out of storage in ac-cordanee with the grades of such grain determined by a federal inspector. Reg. 5, § 16 provides that such warehousemen shall deliver to the lawful holder of a receipt grain of the grade and quantity named in the receipt. Reg. 5, § 18 provides that grain of different grades may not be mixed except, inter alia, when the identity of the grain to be stored is to be preserved.
See note 2, supra.
And see § 23 requiring reports to the Secretary “concerning such warehouse and the condition, contents, operation, and business thereof” and providing that the licensee “shall conduct said warehouse in all other respects in compliance with this Act and the rules and regulations made hereunder.”
The Senate Report also stated, p. 2:
“Bankers have repeatedly pointed out that this section of the warehouse act is its weakest feature. This amendment will clarify and remove many uncertainties from the credit man’s viewpoint. As the law now reads, for fear the Federal act may be negatived by State legislation or regulation, a banker is obliged to follow closely the laws of the 48 different States, the regulations thereunder, and the administrative rulings thereunder. This is an impossible task. The suggested amendment will place the Federal act independent of State acts and should enhance the value of receipts for collateral purposes.”
And see H. R. Rep. No. 4, 71st Cong., 1st Sess. As stated in note 4, supra, the amendment was recommended by the Secretary of Agriculture “so as to make the Federal warehouse act independent of any State legislation on warehousing.”
That is, of course, subject to those express exceptions in the Warehouse Act which subject phases of the business to state law. See e. g., §§ 18 and 20.
The basic program reflected in the Act was described in H. R. Rep. No. 60, 64th Cong., 1st Sess., p. 1, as follows:
“The outbreak of the European war emphasized the fact that the farm marketing machinery of this country is seriously weak, insufficient, and inadequate — a condition which already had been more or less recognized by students of farm economics. From a very thorough study of our system of marketing there will appear: (1) A lack of adequate storage facilities; (2) a lack of proper control and regulation of such storage systems as exist; (3) an absence of uniformity in their methods of operation and the form of receipts issued; (4) a multiplicity of standards for grading and classification, or in some cases an entire absence of such standards for grading and classification; (5) a lack of disinterested graders, classifiers, and weighers; (6) a lack of proper relationship between the storage and banking systems of the country.
“The inauguration under this bill of a permissive system of warehouses licensed and bonded under authority of the Federal Government for the storage of staple and nonperishable agricultural products upon which uniform receipts may be issued, the weights and grades of the products specified therein having been previously determined by licensed weighers and graders in accordance with Government standards, would go far in the direction of standardizing warehouse construction, storage conditions, insurance, accounting, financing, and the handling and marketing of farm products.”
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer: |
songer_usc1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
REDMAN et al. v. UNITED STATES.
No. 5036.
Circuit Court of Appeals, Fourth Circuit.
May 27, 1943.
John H. Skeen, of Baltimore, Md. (Beeuwkes, Skeen, Oppenheimer, & Frank, of Baltimore, Md., on the brief), for appellants.
Samuel Billingsley Hill, Jr., Sp. Atty., Department of Justice, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Wilmer H. Driver, Sp. Asst, to Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.
Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.
NORTHCOTT, Circuit Judge.
In January, 1942, the appellee, United States of America, herein referred to as the Government, filed a petition in the District Court of the United States for the District of Maryland, at Baltimore, for the condemnation of certain waterfront property on Key Highway in the City of Baltimore, Maryland. With the petition a declaration of taking was filed and the usual orders were made declaring that the Government had obtained title and the right to possession as of the date of the filing of the petition.
The Government proceeded under 40 U.S.C.A. §§ 257, 258a to §58e. The property sought to be taken consisted of two marine railways and a ship repair plant and was owned by appellants J. Clarence Red-man, William B. Vane and W. Carroll Redman, co-partners, trading as RedmanVane Shipbuilding Company, who are here referred to as the appellants.
The sum of $125,000 said to be the estimated value of the property was paid into court and on March 2, 1942, the Government took possession. In June, 1942, a trial was had before a jury which resulted in a judgment in favor of the appellants for $164,979.31, of which amount $162,-766.84 was awarded to appellants and $2,-212.47 was awarded to the Mayor and City Council of Baltimore for 1942 taxes on the property. From this judgment this appeal was brought.
Two questions are raised on the appeal; the first being that the court erred in' the rejection of the evidence of an expert offered on behalf of the appellants and also erred in the admission of the evidence of certain experts offered on behalf of the Government.
The second question is the contention of appellants that the trial court erred in the admission of evidence showing the application by appellants for reduction of assessment on the property here sought to be condemned and in permitting the cross-examination of one of the appellants, W. Carroll Redman, as to an affidavit made by him with regard to the value of the property at the time of the application for the reduction of the assessed valuation in the jiear 1938.
The partnership bought the property in October, 1917, and thereafter continuously carried on the business of ship repairs and manufacture of steering wheels, flagpoles, masts, and other similar parts for vessels until the United States took possession. W. Carroll Redman had been acting manager of the business for eight or ten years, the two other partners not being active.
The business was moderately successful, having averaged a profit of $18,000 a year for the past twelve years according to the income tax returns. The firm went out of business because of the taking of the property.
The land was located on the inner harbor of Baltimore City, and had a frontage on Key Highway of 257 feet 5 inches extending into the harbor, with a frontage on the pierhead or bulkhead line of 266 feet, and had an area, including fast land and land under water, of approximately 160,-000 square feet. There were on the property two marine railways: One of 1,100 tons lifting capacity and the other of 325 tons lifting capacity and both were in working condition. The appellants’ property was also improved with other suitable buildings and machinery, in addition to that which operated the marine railways.
It is a well settled principle that it is a constitutional right of a property owner to receive just compensation for his property appropriated by the sovereign. Monongahela Navigating Company v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463; Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236.
At the trial appellants offered one Schilpp as an expert witness on the value of the property and the court sustained the objection made by the Government to a part of his evidence on the ground that the proper foundation had not been laid at that time to permit the witness to give his opinion. In sustaining the objection the court stated that if certain facts developed that would justify the admission of the opinion of the witness he could be recalled. To this ruling there was no exception nor was there any effort made to recall the witness at a later stage in the trial. Under this state of facts there was clearly no error in the ruling of the trial court as to the rejection of this evidence.
It is contended on behalf of appellants that the court erred in admitting the evidence of witnesses Commander Ca-hill, Sanford, and Dudley.
Commander Cahill, after two years in the College of Engineering at the University of Virginia, and some experience with the Seaboard Air Line, was employed in 1916 with the Interstate Commerce Commission, Bureau of Valuation, Engineering Section, and had been continuously employed there for twenty-six years until a month before the trial when he acquired his Naval title and is now an advisor in the Office of the Judge Advocate General. He had made a thorough investigation as to the value of the property taken and evidently was well qualified to testify as an expert. The objection urged on behalf of the appellants that, as a former employee of the Interstate Commerce Commission and a present employee of the Government, he would be biased is without weight as to the admissibility of his evidence but would only be circumstances to be considered by the jury weighing in his testimony. Witness Sanford also was an employee of the Interstate Commerce Commission of seventeen years’ standing as a land appraiser, and was clearly competent to give an opinion as to the value of the real estate in question.
Witness Dudley, as to the admissibility of whose evidence objection was made, was employed as valuation engineer of the Bureau of Yards and Docks of the Navy Department, prior to which employment he also had been with the Interstate Commerce Commission and he was well qualified to testify as an expert.
As we said in the case of White v. State of Maryland, 4 cir., 106 F.2d 392, 397: “ * * * Qualifications of a witness as an expert must be left largely to the discretion of the Trial Court and its rulings thereon will not be disturbed unless clearly erroneous. 22 C.J. 526; Congress & E. Spring Co. v. Edgar, 99 U.S. 645, 25 L.Ed. 487.”
We recently had occasion to discuss the question of the admissibility of expert testimony as to values in the case of United States v. Wise, 131 F.2d 851, 852, where we held that “the admissibility of evidence of this character is largely governed by the peculiar circumstances of each case and rests to a great extent in the discretion of the trial judge”.
’ Here the charge of the judge was clear, detailed, and fair and properly safeguarded the admission of the evidence and there was no error in the ruling of the court on these points. Other cases in which we have dealt with the admission of expert evidence are as follows: Guy v. Commissioner of Internal Revenue, 35 F.2d 139; United States v. Sauls, 65 F.2d 886; Lucas v. Swan, 67 F.2d 106; Prevette v. United States, 68 F.2d 112; Harris v. United States, 70 F.2d 889; Coca-Cola Bottling Company v. Munn, 99 F.2d 190.
We are of the opinion that not only did the trial judge not abuse his discretion in his various rulings but that they were correct and that his charge to the jury fairly covered all the points of law involved.
It is finally contended on behalf of the appellants that they were prejudiced by the court’s ruling admitting in evidence an application, by the appellants sworn to by appellant W. Carroll Redman, for a reduction of the assessed value of the property in question in 1938. In the affidavit W. Carroll Redman gave as the value of the property at the time (1938) .$45,000. The great weight of authority is to the effect that such evidence is admissible under proper instructions by the trial court as to the conditions surrounding the application for reduction in taxation. Baltimore City v. Himmel, 135 Md. 65, 107 A. 522; Rowell v. City of Lowell, 7 Gray 100, 73 Mass. 100, 66 Am.Dec. 464; St. Louis, O. H. & C. Ry. Co. v. Fowler, 142 Mo. 670, 44 S.W. 771; Gossage v. Philadelphia, B. & W. R. Co., 101 Md. 698, 61 A. 692; McCandless v. United States, 9 cir., 74 F.2d 596.
Here the court carefully instructed the jury as to the changed conditions existing between the years 1938 and 1942 that might have.greatly increased the value of the property and certainly no harm was done the appellants by the ruling of the court and no error was committed either in the admission of the affidavit of W. Carroll Redman or in permitting his cross-examination as to it.
The trial was fairly conducted and the charge of the trial judge properly stated the law of the case. The jury arrived at a verdict supported by substantial evidence and in our opinion a just one.
The judgment is accordingly affirmed.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_usc2 | 18 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
THOMAS v. HUNTER, Warden.
No. 3217.
Circuit Court of Appeals, Tenth Circuit.
March 1, 1946.
George Powers, of Wichita, Kan., for appellant.
Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAII, Circuit Judges.
HUXMAN, Circuit Judge.
Petitioner, Richard J. Thomas, has appealed from the judgment of the trial court denying his petition for discharge from the custody of the respondent, under a writ of habeas corpus.
On October 16, 1941, while petitioner was out on parole or conditional release under a prior conviction, he was arrested and taken into custody by the United States Marshal of the Eastern District of Missouri. He was charged in an indictment filed November 13, 1941, with violation of the Dyer Act, 18 U.S.C.A. § 408. On November 21, 1941, and again on January 8, 1942, he attempted to escape from confinement while in the custody of the Marshal. He was indicted in separate indictments for each of these attempted escapes. He pleaded guilty to the charge under the Dyer Act and was tried and found guilty by a jury in each of the attempted escape cases. He was sentenced to serve a term of four years on the Dyer Act violation and to an additional sentence of five years each on the two escape charges. These two sentences were made to run consecutively with each other, and also consecutively with the sentence under the Dyer Act conviction. In all, petitioner was sentenced to a total term of fourteen years.
In his petition for the writ of habeas corpus and on his appeal before this court, petitioner makes two contentions, first, that the escape sentences were not in conformity with the statutory provisions of the Escape Act, 18 U.S.C.A. § 753h, and were therefore void, and that having served the sentence of four years under the Dyer Act charge, he is entitled to release; and, second, that he was denied the right to counsel at the time the verdict of the jury was returned into court and at the time of the sentence, and that the sentences therefore are void.
18 U.S.C.A. § 753h provides: “Any person committed to the custody of the Attorney General or his authorized representative, or who is confined in any penal or correctional institution pursuant to the direction of the Attorney General, or who is in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or who is in custody of an officer of the United States pursuant to lawful arrest, who escapes or attempts to escape from such custody or institution, shall be guilty of an offense. * * * The sentence imposed hereunder shall be in addition to and independent of any sentence imposed in the case in connection with which such person is held in custody at the time of such escape or attempt to escape. If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape.”
The requirement in the first part of the above section, that an additional sentence must be imposed for an escape or attempted escape, does not require that the convicted person be compelled to serve a greater number of years than the number of years imposed for the main offense. A sentence under one conviction is in addition to a sentence under another conviction, if it is a separate and complete sentence. Rutledge v. United States, 5 Cir., 146 F.2d 199. That it runs concurrently with a sentence for the same number of years under a former conviction makes it nonetheless an additional sentence, because if for any reason the convicted person is excused from serving the first sentence, he must nevertheless serve the second sentence. The latter portion of the Act provides that: “If such person be under sentence at the time of such offense, the sentence imposed hereunder shall begin upon the expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape or attempt to escape.” It is upon this provision in the statute that petitioner relies to sustain his first contention.
He argues that at the time of his two attempted escapes he was under sentence for the offense which he had committed prior to the commission of the Dyer Act offense and for which at the time of his arrest he was out on parole. He contends that the court therefore was required to make the two escape sentences begin to run from the completion of his original sentence, rather than from the completion of the sentence for the Dyer Act violation.
In Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808, the Supreme Court held that where one who was on parole or probation committed another offense for which he was arrested and sentenced, while he was incarcerated under the latter sentence he was imprisoned only thereunder, and the service of the original sentence was interrupted and the running of such sentence began again only at the completion of the new sentence. It was held that during the time he was serving the new sentence he was no longer in either actual or constructive custody under the first sentence. From this it follows that when appellant was arrested for the Dyer Act violation, the original sentence was interrupted and suspended. The original sentence being suspended, he was not under that sentence when he broke jail. Petitioner not having been under the original sentence at the time he broke jail, it follows that when the court passed the sentences for the jail break, the provision of the statute which he seeks to invoke did not apply to him.
Furthermore, we think the proviso upon which petitioner relies means that where one is confined and actually serving a prior sentence when he escapes from custody, then the sentence for such escape must be fixed with relation to the expiration date of the prior • sentence or with reference to the date on which one is thereafter legally released from confinement thereunder. It has no application where one is out on parole when he escapes from custody. The words of the statute are: “The sentence imposed hereunder shall begin on expiration of, or upon legal release from, any sentence under which such person is held at the time of such escape * * If petitioner’s construction of the statutory proviso were correct, then the phrases “or upon legal release” and “under which such person is held at the time of such escape” would be meaningless and would be mere surplusage. If one is out on parole he is not held under the sentence.
Petitioner alleged that at the trial on the escape charges his “constitutional right to have the assistance of counsel was violated by the action of the judge in excusing counsel appointed by him from being present at the time of the rendition of the verdicts and imposition of sentences thereunder, without petitioner’s consent thereto.” In support of this allegation he stated that “immediately following the jury’s retirement from the court room to consider for its verdicts, Mr. Frye asked Judge Moore for permission to be absent from the court while the jury was out, and Judge Moore granted him leave as asked for and when the court received the jury’s verdicts about an hour later that day, Mr. Frye was not present in court at that time although he had been advised through instructions of the court that the jury was ready to submit its verdicts, and he, Mr. Frye, was not present immediately following the rendition of the jury’s verdicts when sentences thereunder were pronounced.” Petitioner further alleged that he did not competently and intelligently waive his right to counsel.
Respondent introduced as exhibits the docket entries and the record of judgment and the commitment in the trial court. The docket entries recite that with defendant’s consent the court appointed J. Grant Frye to represent the petitioner; that arguments were made to the jury by respective counsel; that verdicts.of guilty were returned and the defendant was sentenced. The journal entry of judgment recites that: “* * * came the United States Attorney, and the defendant Richard J. Thomas, appearing in proper person, and J. Grant Frye, Esq., his attorney, * * The trial court, apparently relying on the record evidence, refused petitioner the opportunity to testify concerning these allegations. This is urged as reversible error.
While there is a minority view, the great weight of authority is that in the absence of a charge of fraud, the judgment record of a court imports absolute verity and that it may not be challenged in a collateral proceeding by parol testimony. While there is some language in some decisions by the Supreme Court indicating that this rule is not to be applied in all its rigidity in a habeas corpus proceeding in which violations of fundamental constitutional rights are claimed, we think the later decisions by the Supreme Court indicate that recitals in the judgment record going to the jurisdiction of the court, such as that a defendant was represented by counsel, are impervious to attack by testimony in the absence of an allegation of fraud.
in Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009, a petition in a habeas corpus proceeding alleged that petitioner was tried by a jury of eleven men, notwithstanding a recitation in the record that “a jury of good and lawful men" was duly impaneled. The Supreme Court held that the record imported absolute verity and was not open to collateral attack. In Johnson v. Zerbst, 304 U.S. 458, 466, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357, the Supreme Court quotes with approval from In re Mayfield, Petitioner, 141 U.S. 107, 11 S.Ct. 939, 35 L.Ed. 635, as follows: “And the petitioned court has ‘power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or the person, even if such inquiry (involves) an examination of facts outside of, but not inconsistent with, the record.’ ”
In Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 578, 85 L.Ed. 830, Justice Roberts indicated that a petitioner could not dispute incontrovertible facts “such as those recited in a court record.” Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 365, indicates that petitioner’s right was limited to establishing allegations in the petition not inconsistent with the record.. Justice Douglas, in the course of the opinion, stated: “The petition for habeas corpus was denied without requiring the State to answer or without giving petitioner an opportunity to prove his allegations. And the allegations contained in the petition are not inconsistent• with the recitals of the certified copy of the sentence and judgment which accompanied the petition and under which petitioner is confined.” (Emphasis supplied.)
Hawk v. Olson, Warden, 66 S.Ct. 116, 119, contains this significant statement: “The record is either silent on or not inconsistent with anything material in these allegations.”
As pointed out, the journal entry of judgment specifically recites that at the time of sentence, petitioner was present in person and by his duly appointed counsel. In the face of this recital, he was not permitted in a collateral attack to offer oral testimony to impeach the correctness of this recital, and the trial court therefore committed no error in refusing to permit petitioner to contradict this recital by his oral testimony.
But the record is silent as to whether his counsel was present when the jury returned its verdict into court. He' alleged in his petition that he was not present, and that petitioner did not waive his right to counsel and that he was denied his constitutional right to be represented by counsel at this state of the proceedings. If as a matter of constitutional right he was entitled to be represented by counsel at the time the jury returned its verdict, he should have been permitted to testify as to these allegations, and it would be reversible error to refuse him the opportunity to so testify.
No case has been cited and our search has failed to disclose one in which the identical question has been decided. Kent v. Sanford, 5 Cir., 121 F.2d 216, 217, apparently recognizes the right of a defendant to be represented by counsel at the time the verdict was returned and sentence was pronounced. From the opinion it appears that petitioner was not so represented, but ■that he had been represented by counsel up to the point where the jury returned its verdict and sentence was imposed. The court apparently excused the failure to have counsel present on the theory, as stated in the opinion, that “The court advisedly accepted for itself the duty of representing the defendant upon the return of the verdict, and fully discharged that responsibility.” A number of cases have considered the right to counsel at the time of sentence, and, as in many instances, the decisions are not in accord. This question was before us in Batson v. United States, 10 Cir., 137 F.2d 288, but we did not find it necessary to pass upon it. Those cases which hold that it is not essential that counsel be present at the time of sentence generally place their decision on the ground that the sentence is no part of the trial. In the Batson case, supra, we expressed our disapproval of the practice of imposing sentence in the absence of counsel without expressly ascertaining that defendant does not desire his presence.
In Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 84 A.L. R. 527, the Supreme Court of the United States sets out in detail why a defendant is entitled to counsel at every stage of the proceedings, and states: “He requires the guiding hand of counsel at every step in the proceedings against him.”
In Hawk v. Warden, supra, Justice Reed said: “He had no advice of counsel prior to the calling of the jury. * * * The defendant needs counsel and counsel needs time.”
To hold that the return of the verdict into court or sentence thereafter is no part of the trial is to accord the term “trial” a very narrow and technical definition — too narrow a definition when the question under consideration is the violation of human rights and liberty guaranteed by the Constitution. We think that the return of the verdict by the jury and the imposition of sentence upon a verdict of guilty are steps in the trial of a defendant charged with the violation of a criminal statute. Certainly the return of the verdict is an important step in the trial, at which the defendant needs the guiding hand of competent counsel. He has the right and privilege of polling the juryj the right to stand and have each juror stand and face him and say whether the verdict is or is not his individual verdict. As stated in the Powell case, supra, and all the subsequent cases which follow it: “He requires the guiding hand of counsel at every step in the proceedings against him.” Failure to accord him this protection at every step in the proceedings constitutes error unless he intelligently waives the right thereto. It is not sufficient, in our opinion, to say that failure to accord him this protection at every step in the proceedings is immaterial error when it appears that the court “advisedly accepted for itself the duty of representing the defendant upon the return of the verdict, and fully discharged that responsibility.” Assuming that a court can adequately represent the defendant at any step of a contested criminal trial, that is not a substitute for, nor can it be taken in satisfaction of, the constitutional requirement that one charged with crime is entitled to the benefit of counsel who will devote his undivided energies solely and exclusively to the performance of these functions.
Failure to permit petitioner to testify as to this issue, in the light of the record, constitutes reversible error.
The judgment is accordingly reversed and the case is remanded, with directions to proceed in conformity with the views expressed herein.
While the decision in McMahan v. Hunter, 10 Cir., 150 F.2d 498, did not hinge upon the precise question, we had occasion there to consider this provision of the escape statute. There, McMahan escaped from custody while serving a sentence. He was convicted on an escape charge and was given an additional sentenee to begin at the expiration of the original sentence. We held, in effect, that, under those facts, the new sentence would not begin to run until the expiration of the original sentence or until he was paroled therefrom.
Emphasis supplied.
Freeman on Judgments, 5th Ed., Collateral Attack, § 375, et seq.; 31 C.J.S., Evidence, p. 793, § 145; 31 Am.Jur., p. 181, § 583.
Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 589, 59 L.Ed. 969. This case discusses in detail the place of habeas corpus in our jurisprudence when questions of constitutional rights are involved. After discussing these principles, the Supreme Court states: “In the light, then, of these established rules and principles: that the due process of law guaranteed by the 14th Amendment has regard to substance of right, and not to matters of form or procedure; that it is open to the courts of the United States, upon an application for a writ of habeas corpus, to look beyond forms and inquire into the very substance of the matter, to \ the extent of deciding whether the prisoner has been deprived of his liberty without due process of law, and for this purpose to inquire into jurisdictional facts, whether they appear from the record or not; * * *” (Emphasis supplied.)
See Footnote 2, Batson v. U. S., supra.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_numappel | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Walter Mark FLANAGAN, Petitioner-Appellant, v. Jim ROSE, Warden, Respondent-Appellee.
No. 72-2079.
United States Court of Appeals, Sixth Circuit.
Argued April 10, 1973.
Decided May 22, 1973.
Blanchard E. Tual (Court Appointed), Tual, Douglas & Tual, Memphis, Tenn., for petitioner-appellant.
R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for respondent-appel-lee.
Before PHILLIPS, Chief Judge, and KENT and LIVELY, Circuit Judges.
PER CURIAM.
This is an appeal from the denial of a writ of habeas corpus. The appeal challenges the legality of a search warrant which was executed by state officers to obtain evidence to establish that the appellant and his co-defendants had been robbing the coin box of a pay telephone. Two search warrants are involved: one for the search of rooms at a motel, and the other for the search of an automobile located on the motel premises.
The affidavit in support of the search warrant was executed by the same af-fiant in each case. The affiant was not identified as a police officer, which in fact he was. In each affidavit this appellant, together with his co-defendants, is named. The affiant stated, in his affidavit in support of the search warrant, “that he has good ground and belief and does believe * * * ” that the appellant and his co-defendants are in possession of stolen property and burglary tools, and the affidavit continued, “and his reasons for such belief are that affiant has received information from David Hindman that burglary tools and/or stolen property was stored at the above premises, November 11, 1965.” The other affidavit is exactly the same, except the word “automobile” is substituted for the word “premises”.
The affidavit does not identify David Hindman. There is nothing to establish or even suggest that David Hindman was an individual upon whose information reliance could be placed. There is nothing in the affidavit to establish the circumstances under which David Hindman may have obtained the information to which reference is made.
In summary the affidavits are clearly inadequate within the meaning of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
It is claimed by the appellee, and the district court found, that the magistrate who issued the search warrants had other information in regard to the circumstances which led up to the affidavit for the search warrant, including the identity of Hindman and how Hindman obtained the information, referred to in the affidavit, which justified the issuance of the warrant. ■
The transcript of the evidentiary hearing in the district court, and the transcript of all proceedings in the state trial court are insufficient to establish that the magistrate who issued the warrant took any sworn testimony to supplement the allegations in the affidavits for the search warrants. In fact the officer who swore to the affidavits in support of the search warrants testified before the District Judge:
“A. Well, I remember making this out [the affidavit] and taking it out to his residence.
Q. That is really all you remember about it, isn’t it, Mr. Anderton?
A. Telling him what happened, I don’t know what I said exactly. * * * * * -x-
Q. Sir, the other question that I wanted to try to make clear is, you can’t say whether or not you walked in there and just started talking to the Judge in, normally, as officers do, and as lawyers do in the courtroom, and made some statement to him about what your problem was and so forth, and then later presented, handed him the affidavit and the search warrant, and then he swore you to the contents of the warrant, you can’t tell us the sequence of events, can you?
A. No, sir. I sure can’t.”
The same issue relating to a magistrate having information in addition to that contained in the affidavit was presented to this Court in Tabasko v. Barton, 472 F.2d 871, 874 (6th Cir. 1972). The statement made in that case is applicable to this case.
“We have read and reread the entire transcript of the hearing before the District Judge. We find therein no language from affiant which can be construed as a statement that he gave evidence under oath, except when he swore to the contents of the affidavit.”
In addition to the transcript of the hearing before the District Judge we have read and reread the transcript of the trial of the principal case and can find nothing “which can be construed as a statement that the [affiant] gave evidence [before the magistrate] under oath, except when he swore to the contents of the affidavit.”
Since the evidence secured in the search was essential to establish the appellant’s connection with the crime the admission of such evidence cannot be harmless error.
The judgment of the District Court is reversed and the case is remanded for the entry of an order granting the writ of habeas corpus on such terms as may appear to the District Judge to be appropriate.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_appel2_1_3 | 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 concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
UPDIKE et al. v. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit.
December 1, 1925.)
No. 6873.
1. Interna! revenue <§=>28 — Action to recover excess profits taxes from stockholders of dissolved corporation held not barred by limitation.
Where corporation was dissolved in 1917 prior to approval of Revenue Act Oct. 3, 1917 (Comp. St. 1918, § 6336j et seq.), increasing excess profits tax and making same retrospective for entire calendar year, the fact that it had made returns under Revenue Act Sept. 8, 1916 (Comp. St. § 6336a et seq.), or Act March 3, 1917, did not start the running of limitations under Act Nov. 23, 1921, § 250 (Comp. St: Ann. Supp. 1923, § 6338%tt), as against government’s suit for unpaid excess profit tax due under Act Oct. 3, 1917, to date of corporation’s dissolution, where no return was filed under such act.
2. Interna! revenue <§=>22 — Congress may authorize Commissioner of Internal Revenue to prescribe administrative features.
Congress has power to authorize Commissioner of Internal Revenue to prescribe formal administrative features of time and form to be observed in making returns under revenue acts.
3. Interna! revenue <§=>28 — Government, suing for taxes, need not anticipate and negative defense of limitation.
Government, suing former stockholders of dissolved corporation to recover excess profits taxes, need not anticipate and negative defense of limitation, under Act Nov. 23, 1921, § 250 (Comp. St. Ann. Supp. 1923, § 6336%tt).
4. Internal revenue <§=>I— Congress may impose excess profits tax applicable to income or excess profits of entire year, though part of that year has already elapsed.
Congress may impose excess profits tax applicable to income or excess profits of entire year, though part of that year has already elapsed.
5. Taxation <§=>! — A tax is not a debt in a-strict sense.
A tax is not a debt in a strict sense.
6. Infernal revenue <§=>27(2) — Stockholders, receiving corporate assets on dissolution before payment of taxes due, take such assets impressed with a trust.
Stockholders, receiving assets of dissolved solvent corporation, which has not paid excess profits or income taxes, take such assets impressed with a trust, and are liable in suit for such taxes; dissolution in such respect having same effect as insolvency, within rule that trust fund doctrine does not apply to solvent going concerns.
7. Internal revenue <§=>!! — Congress may impose tax on corporation, which has previously, but during same year, effected a voluntary dissolution.
Congress may impose income or excess profits tax on a corporation, which has previously, though during same year effected a voluntary dissolution, making income earned during portion of year when it was in existence measure of its liability.
8. Internal revenue <§=>9 — Corporation dissolved- before adoption of act increasing excess profits tax held liable for additional taxes under that act.
Corporation, which, after making returns and paying tax under Act Sept. 8, 1916 (Comp. St. § 6336a et seq.), and Act March 3, 1917, effected a voluntary dissolution before adoption of Act Oct. 3, 1917, held, under Rev. St. Neb. 1913, § 555, and Act Oct. 3, 1917, tit. 2, §§ 212, 1001, 1001, 1005 (Comp. St. 1918, §§ 0330%m, 6348a, 5896b, 6349b), Act Sept. 8, 1916, tit. 1, pt. 2, § 13 (Comp. St. § 6336m), and Treasury Regulations, regulation 33, art. 61, liable for additional tax under 1917 act, which was recoverable from former stockholders, to whom its assets had passed.
Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodro-ugh, Judge.
Suit by the United States against Nelson B. Updike and others. Decree for the United States (1 F.[2d] 550), and defendants appeal.
Affirmed.
Francis A. Brogan, of Omaha, Neb., (Anan Raymond and Alfred G. Elliek, both of Omaha, Neb., on the brief), for appellants.
James C. Kinlser, U. S. Atty., of Omaha, Neb. (Ambrose G. Epperson, of Clay Center, Neb., and George A. Keyser and Andrew O. Scott, Asst. U. S. Attys., both of Omaha, Neb., on the brief), for the United States.
Before STONE and VAN VALKENBURGH, Circuit Judges, and WILLIAMS, District Judge.
Rehearing denied February 16, 1926.
VAN VALKENBURGH, Circuit Judge.
July 1, 1910, the Missouri Valley Elevator Company was duly organized as a corporation under the laws of the state of Nebraska, with a capital stock of $150,000. Its principal office and place of business was at Omaha, in said state. For the purpose of return, assessment, and computation of taxes due under the revenue laws of the United States, it had established a fiscal year beginning on July 31 and ending May 31. On August 1, 1917, it held a meeting of all its stockholders, at which time it was voted that a deed ofc“ conveyance of all its real estate, together with its elevator, should be made to the Updike Grain Company, and that by bill of sale all o-f its personal property should be delivered to said Updike Grain Company. It was further voted that the corporation should immediately be dissolved in accordance with laws of the state in sucli cases made and provided. . The officers of the corporation were authorized and directed to execute the necessary certificate of dissolution. This certificate was duly filed in the office of the secretary of state of the state of Nebraska on August 2, 1917. The stockholders of said corporation at that time were the defendants Nelson B. Updike, Elmer A. Cope, Edward Updike, Otis M. Smith, Gorton Roth, and Robert B. Updike, who held the entire 1,500 shares of the capital stock. At the same time, or shortly thereafter, at any rate prior to October 4, 1917, all the money and property of said corporation, inuring from the transfer above stated and otherwise, was distributed to said stockholders in proportion to their holdings.
October 3, 1917, there was approved an act of Congress entitled “An act to provide revenue to defray war expenses and for other purposes” (Comp. St. 1918, § 6336j et seq.). It was provided therein that it should take effect on the day following its passage, to wit, October 4, 1917. This act, among other things, provided for certain increases in excess profits taxes over those provided in acts then in existence. These prior acts, with which we are more specifically concerned, are those of September 8, 1916 (Comp. St. § 6336a et seq.), and March 3, 1917 (39 Stat. 1000). It is conceded, or at least not disputed, that the dissolved corporation had paid all excess profits taxes due under these prior acts, including that part of its fiscal year between January 1 and May 31, 1917. The Act of October 3, 1917, provided that any amount theretofore paid on account of the tax imposed under the Act of March 3,1917, should be credited toward the payment of the tax imposed by title 2 of the Act of October 3,1917. Under the prior acts certain returns by the taxpayer were provided for, the same to be made at stated periods, and penalties were provided for failure to file and for the making of false returns. The Missouri Yalley Elevator Company made all returns required under acts prior to that of October 3, 1917, including that part of the year 1917 ending May 31.
The Act of October 3, 1917, was made retrospective, to include all of the calendar year in which it was passed. By section 212 of title 2 of the act it was provided:
“That all administrative, special, and general-provisions of law, including the laws in relation to the assessment, remission, collection, and refund of internal revenue taxes not heretofore specifically repealed, and not inconsistent with the provisions of this title are hereby extended and make applicable to all the provisions of this title and to the tax herein imposed, and all provisions of title 1 of such Act of September eighth, nineteen hundred and sixteen, as amended by this act, relating to returns and payment of the tax therein imposed, including penalties, are hereby made applicable to the tax iztíposed by this title.” Comp. St. 1918, § 6336%m.
’ Section 13, pt. 2, title 1 of the Act of September 8, 1916 (39 Stat. 771; Comp. St. § 6336m), makes specific provision for such returns. In section 1001 of its administrative provisions the Act of October 3,' 1917, .provided as follows:
“That all administrative, special, or stamp provisions of law, including the law relating to the assessment of taxes, so far as applicable, are hereby extended to and made a part of this act, and every person, corporation, partnership, or association liable to any tax imposed by this Act, or for the collection thereof, shall keep such records and render, under oath, such statements and returns, and shall comply with such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may from time to time prescribe.” Comp. St. 1918, § 6348a.
And section 1004 thereof is in the following language:
“That whoever fails to make any return required by this act or the regulations made under authority thereof within the time prescribed or who makes any false or fraudulent return, and whoever evades or attempts to evade any tax imposed by this act or fails to collect or truly to account for and pay over any such tax, shall be subject to a penalty of not more than $1,000, or to imprisonment for not more than one year, or both, at the discretion of the court, and in addition thereto a penalty of double the tax evaded, or not collected, or accounted for and paid over, to be assessed and collected in the same manner as taxes are assessed and collected, in any ease in which the punishment is not otherwise specifically provided.” Comp. St. 1918, § 5896b.
These last two sections quoted are supplemented by section 1005, which provides as follows:
“That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is hereby authorized to make all needful rules and regulations for the enforcement of the provisions of this act.” Comp. St. 1918, § 6349b.
Pursuant to the authority thus conferred tho Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, made and promulgated article 61 of regulations 33 of the United States Treasury Department as follows:
“Corporation Dissolved Prior to October 4, 1917. — A corporation which was dissolved in 1917, prior to passage of the War Revenue Act of October 3, 1917, is subject to tax under the Aet of September 8, 1916, as amended, and also to the war income tax and the war excess profits tax imposed by tho Aet of October 3, 1917. Brady et al. v. Anderson, 240 F. 665, 153 C. C. A. 463. A corporation so situated will make a return on revised form 1031, covering the period in 1917 during which it was in business prior to its dissolution. If it shall have previously made a return covering this period, and shall have paid any excess profits tax under the Aet of -March 3, 1917, it shall he entitled to credit for the amount of sueh tax so paid against any excess profits tax assessable against it under title 2 of the Aet of October 3, 1917.”
This form 1031 was duly furnished to tho Missouri Valley Elevator Company, and was returned in blank to the collector of internal revenue for the district of Nebraska, with a letter from the secretary of said corporation advising of the dissolution, which said letter was tantamount to a denial of any liability of the corporation for excess profits taxes under tho Act of October 3, 1917, and to a refusal, therefore, to make any return under said aet.
The Revenue Department thereupon made a computation of the excess profits lax due from said corporation for that part of the year 1917 ending May 31, during which period the corporation was engaged in business prior to its dissolution, fixing the amount at $34,561.92, for the recovery of which it brought suit in the District Court for the District of Nebraska against the stockholders, appellants herein. That court found in favor of the United States, and by its decree found tho amount due the government, including interest, from March 15, 1918, to be the sum of $50,380.35. It accordingly adjudged that “each and every one of the above-named defendants is hereby ordered and directed to pay to complainant tho above-mentioned sum of money sufficient to satisfy this decree, or so mueh thereof and to tho extent that each has received the assets of Missouri Valley Elevator Company prior to the dissolution thereof.” From this decree and judgment this appeal is taken.
The contentions of appellants are: First, that the Aet of October 3, 1917, was not applicable to corporations not in existence at the time of the passage of the aet; second, that that act created no liability for taxation upon the part of stockholders who bad re>ceivod a distribution of the assets of a corporation prior to the act, which corporation had been dissolved prior to tho passage of tho act; third, that, if it sought so to do, its provisions are in violation of the Constitution of the United States; fourth, that the Act of October 3, 1917, required the filing of no other returns by the dissolved corporation than those which were filed by it in the year 1917 under the provisions of the Act of September 8, 1916; fifth, that such returns were those contemplated by section 250d of the act of .1921 (Comp. St. Ann. Supp. 1923, § 6336%tt), and that under that section this suit by the government is barred. It is also urged that the court erred in rendering a joint judgment against all of the defendants. That part of section 250 of the Act of November 23, 1921, upon which appellants rely as barring this action by limitation reads as follows:
“No suit or proceedings for the collection of any such taxes due under this act or under prior income, excess profits, or war profits tax acts, or of any taxes due under section 38 of such Aet of August 5, 1909, shall bo begun, after the expiration of five years after the date when such return was filed.”
Prior to 1918 there had been no limitation upon the bringing of suits of this nature by the government-. Holmes, Federal Taxes (1923 Ed.) p. 1032. By the act, in terms, the limitation is restricted to eases in which “such return was filed.” If, as contended by appellants, no return was required by tho Act of October 3, 1917, then section 250 has no application. Their insistence is, however, that the returns made under the prior acts are such as bring them within the provisions of the limitation section, with respect to recoveries for taxes under the Act of October 3, 1917. To this we cannot agree. Returns under tho Acts of 1916 and March 3, 1917, obviously could not cover the increased taxes imposed by the later aet. For the ascertainment of the latter a return would be logical and essential, and its requirement accords with the procedure established by Congress in all revenue laws of this nature.
The sections of tho aet above quoted clearly call for such returns, and it was within the power of Congress to authorize the Commissioner of Internal Revenue to prescribe the formal administrative features of time and form in the making of such returns. The provision that “any amount heretofore or hereafter paid on account of the tax imposed by such title 2 shall be credited toward the payment of the tax imposed by this title” does not negative the requirement of a return under the Act of October 3, 1917, nor make such a return supplemental to those previously furnished. It might very well be that no previous return had been made by one subject to tax under prior acts. In such case a return must be made under the Act of October 3, 1917, and not under those prior acts. This provision was inserted for the protection of the taxpayer against double taxation for the same period, and has to. do with payments made, not with the returns from which such payments were computed.
In this case a return was required, and none made, in a true legal sense. Therefore the limitation invoked has no application. That appellee in its bill of complaint made reference to returns previously filed by the Missouri Valley Elevator Company, and characterized them as incorrect, misleading, and false, has no significance. The government sues for excess profits taxes alleged to be due under the Act of October 3, 1917. The bar by limitation, if it existed, was a defense which it was incumbent upon the defendants to interpose and for which the complainant in its pleading need assume no responsibility. It was unnecessary for the government in its bill to anticipate the defense of limitation by alleging either that no return was filed, or that the one filed was false in any particular. The gist of the complaint is contained in paragraph 10 thereof.
“Thereafter the Commissioner of Internal Revenue on or about the- day of November, 1919, duly assessed against the said corporation an additional tax in the sum of $34,561.92 for the said taxable period beginning July 31, 1916, and ending May 31, 1917; and by reason of the income so received by said corporation as aforesaid during the said taxable period aforesaid, the corporation under the provisions of the said Revenue Act of 1917 amending the aforesaid Revenue Act of 1916, became and now is indebted to the complainant for additional income and excess profits tax in the aforesaid sum of $34,561.92, and the said sum remains yet due and unpaid.”
Thereby, in conformity with the provision to which reference has been made, credit is given for like taxes theretofore paid for the period covered by the later act. This disposes of the fourth and fifth contentions. The provisions of the Act of October 3, 1917, were applicable to the income'of that entire year. The right of Congress to impose such a tax on the income of the current year, though part of that year had elapsed when the statute was passed, is not open to question. Brushaber v. Union Pac. R. R. Co., 240 U. S. 1-20, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713; Maryland Casualty Co. v. United States, 251 U. S. 342, 40 S. Ct. 155, 64 L. Ed. 297; United States v. Boss & Peake Automobile Co. (D. C.) 285 F. 410; United States v. Chicago & E. I. Ry. Co. (D. C.) 298 F. 779; Holmes, Federal Taxes (1923 Ed.) p. 1213; Beam v. Hamilton (C. C. A.) 289 F. 9-12.
The rule would, of course, be the same with respect to excess profits; and inasmuch as the Act of- October 3, 1917, applied to all corporate operations within that calendar year, it would cover logically all such conducted during any fractional part of that year. Therefore, corporations which had engaged in business and realized taxable excess profits during a part of the year 1917, for example, between January 1 and May 31 thereof, as in the present case, would be liable for the taxes imposed by this act, although They may have been dissolved by voluntary action prior to the passage of the act. The law, by its terms, is expressly made to apply to all business transactions of the nature therein described during the entire calendar year, and the whole must necessarily include the part.
It is true that a tax is not a debt in a strict sense. Meriwether v. Garrett, 102 U. S. 472-513, 26 L. Ed. 197. “But whether the government may recover a personal judgment for a tax depends upon the existence of the duty to pay, for the enforcement of which another remedy has not been made exclusive. “Whether an action for debt is maintainable depends, not upon who is plaintiff, or how the obligation was incurred; but the action lies wherever there is due a sum either certain or readily reduced to certainty.” United States v. Chamberlin, 219 U. S. 250, 31 S. Ct. 155, 55 L. Ed. 204.
In discussing what property of a corporation on dissolution the courts may reach and apply to the discharge of its obligations, the Supreme Court in Meriwether v. Garrett, 102 U. S. loc. cit. 518 (26 L. Ed. 197) said: “We answer, it is the private property of the corporation; that is, such as it held in its own right for profit or as a source of revenue, not charged with any public trust or use, and funds in its possession unappropriated to any specific purpose. In this respect the position of the extinct corporation is not dissimilar to that of a deceased individual.”
While the tax is not upon the property, but is against the citizens and residents of the United States personally, the latter axe chargeable in respect to income received by them, which may be followed wherever it may be found, except in the hands of third persons for value and without notice. Brady v. Anderson (C. C. A., Second Circuit) 240 F. 665, 153 C. C. A. 463. In that ease it was held that, upon the death of a person subject to the tax under a retrospective statute passed after his decease, the estate in the hands of his executors is likewise subject thereto. The effect of making the act retrospective was to make it apply to the deceased, exactly as if it had been enacted on the date covered by its provisions. In the present case, the Act of October 3, 1917, would apply to the Missouri Valley Elevator Company as though it were passed on January 1,1917.
It must be conceded that if the corporation was subject to this tax, and if its property distributed upon dissolution constitutes a trust fund on behalf of creditors or those entitled to be paid out of its assets, the stockholders who received its property in distribution must be held to respond to the extent of their receipts under such distribution. The trust fund doctrine has been held not to apply to solvent going concerns; but dissolution, in this respect, has the same effect as insolvency. Broughton v. Pensacola, 93 U. S. 266-269, 23 L. Ed. 896; McDonald v. Williams, 174 U. S. 397-403, 19 S. Ct. 743, 43 L. Ed. 1022. Its property then becomes a trust fund for the benefit of creditors and those sustaining a like position under the law; and, if that property has been distributed to stockholders, it remains impressed with the same trust. United States v. McHatton et al. (D. C.) 266 F. 602; United States v. Gen. Inspection & Loading Co. (D. C.) 192 F. 223; United States v. Boss & Peake Automobile Co. et al. (D. C.) 285 F. 410; affirmed in (C. C. A.) 290 F. 167; Mumma v. Potomac Co., 8 Pet. 281—286, 8 L. Ed. 945; Fidelity Trust Co. v. McKeithan Lumber Co. (D. C.) 212 F. 229-240; Jahn v. Champagne Lumber Co. (C. C.) 157 F. 407, affirmed (C. C. A., Seventh Circuit) 168 F. 510, 93 C. C. A. 532.
In the latter case Judge Baker said: “As equity looks beyond form to substance, the first thing to observe is that a corporation is an instrument by means of which individuals upon an agreed capital do an agreed business, with limited personal liability.”
In Sawyer v. Hoag, 17 Wall. 610-623 (21 L. Ed. 731), it was held: “After all, this artificial body is but the representative of its stockholders, and exists mainly for their benefit, and is governed and controlled by them through the officers whom they elect. And the interest and power of legal control of ea,ch shareholder is in exact proportion to ihe amount of his stock. It is therefore but just that when the interest of the public, or of strangers dealing with this corporation is to’ be affected by any transaction between the stockholders who own the corporation and the corporation itself, such transaction should be subject to a rigid scrutiny, and if found to be infected with anything unfair towards such third person, calculated to injure him, or designed intentionally and inequitably to screen the stockholder from loss at the expense of the general creditor, it should be disregarded or annulled so far as it may inequitably affect him.”
In Wood et al. v. Dummer et al., 30 Fed. Cas. 435, No. 17,944, Mr. Justice Story places a dissolved corporation, left without property because of distribution to its stockholders, in the same category with one that is insolvent, and says: “If the capital stock is a trust fund [and he holds that it is], theii it may be followed by the creditors into the hands of any persons, having notice of the trust attaching to it. As to the stockholders themselves, there can be no pretence to say, that, both in law and fact, they are not affected with the most ample notice. The doctrine of following trust funds into the hands of any persons, who a,re not- innocent purchasers, or do not otherwise possess superior equities, has been long established.”
It has, therefore, been held that the assets of a dissolved corporation may be followed as in the nature of a trust fund into the hands of stockholders, and that, where the debt was not judicially established by action against the corporation before its dissolution, it may be presented and its validity determined in the equitable suit to enforce such liability of the stockholders. McWilliams v. Excelsior Coal Co. (C. C. A.) 298 F. 884; Champagne Lumber Co. v. Jahn (C. C. A., Seventh Circuit) 168 F. 510-513, 93 C. C. A. 532. And this doctrine has been applied in cases similar to the one before us. Brady et al. v. Anderson, 240 F. 665, 153 C. C. A. 463; United States v. McHatton et al. (D. C.) 266 F. 602; United States v. General Inspection & Loading Co. (D. C.) 192 F. 223; United States v. Boss & Peake Automobile. Co. et al. (D. C.) 285 F. 410; United States v. Boss & Peake Automobile Co. (C. C. A., Ninth Circuit), 290 F. 167. All the stockholders must be made parties defendant.
The main question raised by appellants is whether the government by this Act of October 3, 1917, has taxed, or can tax, a corporation which has by voluntary dissolution passed out of existence as a going 'concern, and, if so, whether it can recover from the stockholders to the extent of their receipt of the corporate property through distribution. Appellants in their brief concede, as they must, that "the government has at all times throughout a calendar year the right at the end of the year or thereafter to impose internal revenue taxes retrospectively to the extent of making the past year’s income the measure of an existing taxpayer’s liability, and that, throughout. the calendar year in question, the taxpayer does business under the shadow of this inchoate right.” Weperceive no sound reason why this conceded right in the government may-not be exercised at any time within the calendar year, and so it has been held. The shadow of this conceded inchoate right, with the notice it imparts to the corporate taxpayer, is likewise east continuously upon the business conducted throughout such year. Furthermore, as stated by the trial judge, and as conceded in brief and argument, the form of this action, as against the stockholders, without judgment first being obtained against the corporation is not assigned as error, nor relied upon by appellants, nor could it be under uniform decisions under the circumstances of this case. ■
Passing, then to the merits, as disclosed by the pleadings and record, it is our judgment that the corporation itself became liable for the excess profits tax accruing from its operations during that part of 1917 that it was engaged in business. Dissolution by the express terms and necessary implications of the Nebraska statutes did not discharge it from its obligations. Section 7, article 1, chapter 14, title "Corporations,” Revised Statutes Nebraska 1913, page 214 et seq.
Appellants concede this inchoate right to impose a retrospective tax. The tax is personal, but it may be satisfied out of any property of the obligor which can be found. We need waste no time in considering whether it is a debt in strict sense. There is little practical difference between a debt and an obligation to pay; therefore it must be conceded, we think, that the corporation, though dissolved, if it still had property in its possession, could be made to respond to this demand of the government. What, then, of the stockholders? In receiving their distributive shares, they have not dealt at arm’s length with the corporation. They do not occupy the position of strangers, who have taken for value, in good faith, and without notice of corporate obligations either fixed or potential. They have not merely diminished the corporate estate, as by dividends declared. They have absorbed the corpus. They have converted their stock certificates into the concrete property which those certificates represented, and have thereby rendered the corporation itself unable to meet its obligations. It is unnecessary to hold that they are charged with constructive knowledge of the potential right of retrospective taxation, whose shadow hovered over the corporation itself, for the record points strongly to actual knowledge as the moving cause of their action in bringing about and hastening the dissolution and the contemporaneous transfer and distribution of assets. The legislation which culminated in the Act of October 3, 1917, was well advanced in July. It is a matter of common knowledge that such action in Congress was, <and is, closely-watched by those likely to become subject to its benefits or its burdens.. The stockholders’ meeting was held August 1, 1917. The resolution to dissolve was passed on that date, and during the month, as stated in the-answer, "the resolution was carried into effect, the property of the corporation was duly conveyed to the purchaser, the cash received therefor, and the money on hand prior thereto, was immediately distributed among-the stockholders.”
It may be noted that the “purchaser” was Updike Grain Company, a corporation, and that among the six appellants, defendants below, are Nelson B. Updike, holder of 1,000-shares, Edward Updike, holder of 256 shares,. and Robert B. Updike, holder of 81 shares, aggregating 1,337 of the 1,500 shares of the capital stock of the dissolved - corporation.. We cannot shut our eyes to the obvious fact that the Missouri Yalley Elevator Company was dissolved with full knowledge on the part of its stockholders of this impending legislation and for the primary purpose of' evading taxation thereunder. In the situation presented, the appellant stockholders-must respond for the corporation in pro-portion to the amounts received in distribution.
It follows that the decree below should be and the same is affirmed.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
MULLINS MFG. CO. v. BOOTH.
No. 8765.
Circuit Court of Appeals, Sixth Circuit.
Feb. 10, 1942.
Harry W. Lindsey, Jr., of Chicago, 111. (Harry Frease, of Canton, Ohio, Harry W. Lindsey, Jr., of Chicago, 111., Joseph Frease, of Canton, Ohio, and Frank E. Liverance, Jr., and Lloyd C. Root, both of Grand Rapids, Mich., on the brief), for appellant.
J. Thomas Smith, of Detroit, Mich. (Arthur C. Beaumont, of Detroit, Mich., on the brief), for appellee.
Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.
SIMONS, Circuit Judge.
Begun by bill for specific performance of a contract for the assignment of patent rights by the inventor to a manufacturer, the controversy revolves about the construction and scope of the contract and the right of the plaintiff to the relief prayed. The court dismissed the bill and granted an injunction upon the cross-bill, restraining the plaintiff from interfering with the defendant’s enjoyment of the inventions involved.
The appellant is a manufacturer at Salem, Ohio, engaged in the stamping of sheet metal and the fabrication of sheet metal products, including evaporators for refrigerating devices. The appellee had invented an improvement in a refrigeration evaporator and float valve assembly to be made of sheet steel, and prior to May 1, 1930, had applied for patents thereon. He negotiated with the appellant, with the result that the latter, after investigation, entered into a contract with him, by the terms of which the patent applications were assigned to the appellant and ripened into patents Nos. 1,893,321 and 1,798,652, subsequently reissued as reissue patents Nos. 19,136 and 18,182. In the preamble to the contract is expressed the desire of the appellant to obtain the inventions specifically referred to, “and any improvements or additions thereto.” Though no specific covenant appears in the body of the instrument expressly obligating the inventor to assign future inventions or subsequently granted patents, to the manufacturer, there are, however, incidental references to improvements from which, it is argued, that the clear intention of the parties to the instrument was that all later inventions relating to refrigeration evaporators are within its scope and that the contract imposes upon the inventor an obligation to assign when and if patents therefor issue.
Between December, 1932, and October 3, 1934, Booth conceived of a new way of making evaporators by extruding metal. This he explained to representatives of the appellant and to the patent attorney who had acted for both parties in the original patent proceedings, and he was asked to expound his concept to the appellant’s chief engineer so that an investigation might be made to determine whether there was merit in the new idea. Booth insisted, however, that he would have to have a new financial arrangement, and it was agreed .that he should be reemployed by the appellant for a period of sixty days at a stated salary, plus expenses, Booth having been earlier employed but released in the exercise of an option" contained in the agreement. The appellant made careful investigation of Booth’s invention for a period of 58 days; found two difficult problems involved, one, a welding problem, and the other a problem of securing extruded metal in sufficient quantities and at a price permitting profitable manufacture in a competitive market.
On November 15, 1934, a report was made by the vice-president of the appellant, to the effect that while Booth’s idea was attractive, it was impractical from a manufacturing standpoint; involved prohibitive expense, and a process so costly that the matter was closed so far as Mullins was concerned, unless Booth could think of something else. On November 30th, two days before the expiration of the agreed investigatory period, Mullins’ chief engineer reported that aluminum could not be extruded with holes; that it was impossible to extrude a section having a plurality of holes; that the cost was prohibitive; that the invention was no improvement over the existing method practiced by Mullins; and that Mullins was not interested in acquiring the invention. Thereupon, Mullins advised Booth that his invention was not practical; that it did not want it; and that he would be removed from the payroll.
Shortly thereafter, however, Mullins undertook a further investigation, and Booth was restored to the payroll at an increased salary. In December it was determined that the Bohn Aluminum and Brass Company could extrude metal in sufficient quantities, and at an appropriate price. Sample evaporators were made embodying Booth’s invention and an effort was made to induce the principal manufacturers of refrigerators to contract for the new evaporators, but without success. On July 18,1936, Mullins notified Booth that because his evaporator was not acceptable to the trade he would be released from the Mullins payroll, and Booth left Mullins’ employ on August 1st. Late in 1939 the Bohn Aluminum Company put upon the market an extruded aluminum evaporator, whereupon Mullins demanded an assignment of .the patent, and failing to obtain it, began the present suit praying for specific performance and asserting Booth’s obligation to assign the patent to it as one for an improvement on the patents referred to in the 1930 contract and so coming within its scope.
The court found that Booth had verbally offered his invention to the plaintiff; had allowed it sixty days within which to investigate and determine whether it wanted it as provided in the agreement; and that prior to the expiration of the period, Mullins had definitely rejected the invention and that it was immaterial whether Booth had offered it under the terms of the contract or as the subject matter of a new contract, and that Booth was definitely released from his obligation to assign under the original agreement. It further found that Mullins had never accepted the invention, and had manifested no interest in it from July, 1936, to late 1939, when the Bohn Company came out with its evaporators. It concluded, as a matter of law, that the extruded evaporator was a new invention, entirely separate and distinct from the inventions covered by the contract; that it was not for a mere improvement upon the inventions referred to therein; and that none of its claims read upon any of the claims in the original patents. It concluded, therefore, that the agreement of May 1, 1930, did not impose an obligation on Booth to assign his inventions upon the extruded metal evaporator or upon the heat exchange unit, and that in any event the controversy between the parties as to the construction and scope of the agreement, having begun in October, 1934, and no sufficient excuse appearing for the plaintiff’s delay in bringing suit until February 19, 1940, Mullins was barred by laches from the equitable relief for which it prayed.
For an understanding of the nature of the controversy as to the scope of the original agreement, it is necessary to know that the sheet metal evaporator, invented by Booth prior to May 1, 1930, was not a basic invention for an evaporator, but was for a mere improvement over the prior art. It related to a sheet metal evaporator manufactured by a new process, whereby a piece of flat rolled steel was placed in a press or stamping machine and corrugated, the corrugated sheet being then superimposed upon a piece of flat sheet metal, and the contact points welded so that .the corrugations became tubes through which the refrigerants were to pass. From this sheet was also formed the header and the sheet was then folded to shape to form the evaporator.
Booth’s 1934 invention for extruding metal to make an evaporator departed from this practice. A billet of metal is heated to a plastic state, placed in a die contained in a hydraulic press, the shape of the die being the shape of the wall structure. Pressure is then applied to the billet to force the plastic material through the die to form the sections in one piece with the conduits therein.
The first question is whether Booth’s second invention was an improvement upon the inventions that formed the subject matter of the original contract. Booth did not invent the refrigerator as such — that was old in the art. He did invent a sheet metal evaporator with walls formed by a doubled sheet of steel within which, by the superimposing of a corrugated sheet upon a flat sheet, are the passages for the circulation of refrigerants, rendering unnecessary other expedients to provide for their circulation. In its broadest sense the term “improvements” is all-inclusive, and if used broadly would comprehend any advance in the art. But Booth did not undertake, nor does the appellant go so far as to argue that he did undertake, to assign to Mullins all future inventions dealing with refrigerator elements. Courts of equity are loath to give their aid by construction to a contract, the enforcement of which will constitute a mortgage for life on the inventor’s brain, and bind all his future products. Independent Electric Co. v. Jeffrey, C.C.Ohio, 76 F. 981; Aspenwall Manufacturing Co. v. Gill, C.C.N.J., 32 F. 697.
Nor did Booth invent the evaporator per se. Had he been a pioneer in this branch of the art, it might, with more persuasiveness, be argued that any invention Booth might later make dealing with evaporators which produced a new result or contributed to speed or economy of manufacture, might be an improvement. But Booth’s original inventions were confined to narrow compass, they were of sheet metal evaporators of definite and precise form, and fabricated as the result of a carefully defined process. Had he thereafter made an invention in the more limited field of sheet metal evaporators, such invention might well have been considered an improvement upon the inventions covered by the agreement.
That Booth, in his earlier applications and patents, was concerned with a sheet metal evaporator, and that that is what Mullins sought and obtained, is not only clearly demonstrated by the situation and practices of the parties, but by the contract itself. Mullins was engaged in manufacture or assembly, or both, of sheet steel products. These were the result of the commonly known “stamping processes.” Mullins was fully equipped to manufacture the original Booth evaporator. It was neither equipped for nor experienced in extruding metal. The problems presented by Booth’s later invention, in bringing commercial realization to Booth’s inventive concept, were not problems that could be or were solved by Mullins. But aside from this, the recitals in the contract itself clearly indicate what Mullins expected to receive, and what Booth obligated himself to convey, if we concede that the contract covers improvements in the absence of a specific covenant relating thereto. In the 21st paragraph of the agreement is the following: “Mullins agrees in consideration of Booth bringing the idea of the sheet. metal evaporator to them for development and sale, to pay to Booth * * The extruded metal evaporator invention of Booth was not an improvement on the sheet metal evaporator that was Booth’s earlier invention — it was a new invention and Booth was not obligated to assign to Mullins his patent thereon. To sustain a decree for specific performance, the contract not only should be clear and unambiguous, but the evidence in relation to the acts alleged to have been done under it and necessary to give it effect should be clear and convincing. Jenkins Petroleum Process Co. v. Sinclair Refining Co., D.C., 32 F.2d 247; Id., 1 Cir., 32 F.2d 252, affirmed 289 U.S. 689, 53 S.Ct. 736, 77 L.Ed. 1449, 88 A.L.R. 496. Neither in the contract nor in the attendant circumstances bearing upon the intention of the parties, is there that clarity and conviction compelling proof of Booth’s obligation .to justify a decree for specific performance.
But if we are wrong in this Mullins still must fail. The court found that there was rejection of Booth’s offer of his extruded invention, whether offered under the original contract or coupled with insistence upon a new contract; that if there was a second offer it was not at any time accepted, and that there was an unexplained delay in demanding assignment for a number of years subsequent to its presentation and after it had been reduced to practice. The evidence supports the findings, and the findings, the conclusion. We recognize that this is an equity case, and that there is no conclusiveness in the lower court’s decision on the controversial facts. We have given careful consideration, however, to the entire record. The court below heard and saw the witnesses, and had advantages superior to ours to determine credibility and the weight of evidence. We are unable to say that the results reached are erroneous.
True, it is, that courts have refused to recognize mere delay as a bar to the pursuit of an equitable remedy when there has been no disadvantage resulting to the other party from such delay. The principle asserted is so well understood that citation or discussion of authorities is unnecessary. But the plaintiff’s insistence that it is entitled to a decree for specific performance because Booth suffered no disadvantage by its failure to enforce assignment for a period of years, must be rejected. There was a controversy between the parties as to whether the new invention came within the contract. It was meritorious and not merely colorable. Mullins insisted that the new concept was within the contract — Booth contended that it proclaimed a new invention. Until that controversy was terminated, there was a cloud upon Booth’s title. He could manufacture,, or license others to manufacture under his application or patent, only at his peril. This is made still more clear by the appellant’s^ present insistence that even if it does not have the legal title to the Booth invention, it has an equitable title thereto. Until the controversy was terminated, either by arbitration or litigation, Booth’s rights were uncertain, and his plans for exploiting a now concededly valuable invention, hampered and delayed. True it is, also, that Booth in 1939 did do something to promote his invention, but that was only after the lapse of years had dimmed the threat to it. If Mullins did not want his invention somebody else might, and he was entitled to know, beyond peradventure, the validity of Mullins’ claim to it. His disadvantage in the interim clearly appears.
The contention that during substantially the entire period of delay Booth had but an application, and so n<J property right to assign that Booth could demand, is, of course, not persuasive. The right of Booth to his invention while his application is pending is an inchoate right, which matures as property when the patent issues, and it may have great prospective value. It must be remembered that the entire contract, including Booth’s employment by Mullins, was founded upon no greater interest in property than is represented by patent applications. Mullins’ explanation for delay, based upon its aid exerted in securing the patent grants .through its attorney and at its expense is likewise rejected. Booth desired to have his own patent counsel file the application, and permitted it to be done by Mttllins only upon an agreement that his position that the patent did not come within the contract would not thereby be prejudiced. To this Mullins agreed, and we refuse to consider .the argument that the delay was contributed to by Booth by reason of the “no prejudice” agreement.
One word more is necessary, in ail fairness to the District Judge, for us to say. Repeatedly, in brief and argument, it is urged that the court below failed to give full consideration to the evidence, and to the proposed findings of fact submitted by the parties, and reiterated is the implication that, if it had, a different result would have followed. The record lends no support to this manner of presentation nor to any inference that there was departure by the court from that careful and painstaking attention to issues and proofs that, through the years, we have been led to expect from the district of adjudication under its present governance.
The decree below is affirmed.
8th: This license agreement shall remain in force throughout the term of any and all patents coming within this agreement as a result of applications for Letters Patent, or any re-issues, to be filed for said inventions and improvements thereon unless otherwise terminated as herein provided for.
13th: It is further agreed that Mullins shall have the right to grant sub-licenses under this agreement and to make, use and/or sell evaporators and float valve assemblies or other devices utilizing the aforesaid inventions or any improvements thereon, and that Mullins shall be responsible to Booth for the payment of royalties thereon the same as if made and sold by Mullins.
16th: It is further agreed that all expense in connection with the preparation and prosecution of applications covering the aforesaid inventions relating to evaporators, float valve assemblies or other devices for household and commercial refrigeration and the methods in connection therewith and any improvements made thereon hy either party to this agreement, shall be paid for by Mullins and shall come within the terms of this agreement and Booth further agrees to have such applications diligently prosecuted to fully protect Mullins in its monopoly.
17th : It is further understood and agreed that Mullins shall have the right to apply for foreign patents upon said devices covered by this agreement or any improvements thereon.
In the event after Booth has formally offered in writing to Mullins certain refrigeration devices which he thinks should be patented and Mullins declines to accept said offer within sixty (60) days, then Booth is free to apply for said patents at his own expense and to use said patents as he may desire and may dispose of said patents without any claim of Mullins whatsoever.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_respond1_3_2 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents.
Nos. 74-1381, 74-1382.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 19, 1975.
Decided May 27, 1975.
John A. Jeffries, Steven H. Adelman, Chicago, 111., for petitioner.
McNeill Stokes, Atlanta, Ga., for amicus curiae.
Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
Before STEVENS, SPRECHER and TONE, Circuit Judges.
SPRECHER, Circuit Judge.
The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties.
I
Wright Construction Company, Inc. was the general contractor for the con-' struction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility ,for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors’contract contained a description of their duties which included general construction or carpentry work.
On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164.
It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level.
The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors.
Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at the time of the inspection it was used by all employees to reach the various floors.
On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet IIV2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement.
Because of these conditions the OSHA inspector cited Wright as well as both petitioners for non-serious violations of 29 C.P.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). A total fine of $150 against each subcontractor was assessed.
It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these , were installed by employees of Wright or other subcontractors who were members of Carpenters’ Local 565 and Laborers’ Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters’ union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job.
The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor’s enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners’ motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a).
II
The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer’s duty flows from two sources. First, the Act requires that employers “shall comply with . . . standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to “furnish ... his employees . a place of employment . . . free from recognized hazards . . . likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). This appeal does not deal with the application of the general duty clause.
Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655.6 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. The employer may contest the citation or the proposed penalty or both.
The Commission, through its decisions, has consistently taken the position that, exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said:
[T]hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication.
Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination.
Id. at 1060-61.
The Commission’s position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said:
Admittedly, the respondent is responsible for the “place of employment,” yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contract of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complys [sic] with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work project on which numerous other contractors’ employees are working.
Under section 9(a) [29 U.S.C. § 658(a)] of the Act it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative.
Id. at 7-8.
Similarly, Chairman Moran dissenting from the Commission’s reversal of R. H. Bishop Co., 8 OSAHRC 930 (1974) (Review Commission) adopted the following from the Administrative Law Judge:
In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units.
Id. at 938.
The reason for the divergent views is easily explainable. On the one hand the basic purpose of the Act is to prevent employment related injuries. The Secretary and a majority of the Commission have taken the position that this goal can best be achieved by imposing liability on a broad-based scale. Conversely, on the other side is the recognition that the prevailing position treats subcontractors, in light of the purposes of the Act, unnecessarily harshly and inequitably. We have carefully considered the position of both sides and have determined that the Act does not allow the Secretary to issue citations to the petitioning subcontractors for non-serious violations of the regulations involved in this case.
Ill
In reaching our conclusion we start with an analysis of the legislative scheme enacted by Congress. As previously stated the general duty clause provides that each employer shall furnish to his employees a place of employment free from serious hazards. 29 U.S.C. § 654(a)(1). It speaks in terms of furnishing a place of employment to employees such that they will not be exposed to the proscribed conditions, those conditions being ones that are “likely to cause death or serious physical harm.”
The other source of an employer’s duty under the Act states that an employer “shall comply” with regulations promulgated pursuant to the Act. 29 U.S.C. § 654(a)(2). This subsection, unlike (a)(1) (the general duty clause), does not speak in terms of employee exposure to hazards. If anything at all can be gleaned from the words of the subsection, it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated standards. This, as will be shown, is not the case under the Secretary’s position.
It is true that the general duty clause was included in order to cover the most flagrant of situations and for which the Secretary had not promulgated appropriate regulations, so perhaps not much significance should be accorded the difference in language between the subsections. The varying thrust of the two subsections, however, is significant in at least one respect. The difference in language makes clear that when Congress desires to make mere exposure to a particular hazard a violation of the Act, it knows how to select language to clearly accomplish that goal. This conclusion is reenforced by the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, where the language clearly makes exposure to conditions which violated promulgated regulations a violation for both general and subcontractors alike.
We start then with the proposition that exposure to non-serious violations of standards promulgated pursuant to (a)(2) do not stand on the same footing as exposure to conditions that are likely to cause serious physical harm or death.
IV
If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption. In considering the proper interpretation of the statute, we have reviewed the legislative history carefully. Regretfully, we have found little that sheds significant light on the problem. We are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated congressional purpose in an equitable manner, without the aid of a clear legislative record on the subject.
The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . 29 U.S.C. § 651(b). It is clear that the Act is not nor could it be designed to eliminate all occupational accidents. Rather it is designed to require
a good faith effort to balance the need of workers to have a sale [sic] and healthy work environment against the requirement of industry to function without undue interference.
Legislative History, supra, note 15 at 435 (Remarks of Senator Williams).
The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful. S.Rept.No.91-1282, 91st Cong., 2d Sess. 9 (1970); H.R.Rept.No.91-1291, 91st Cong., 2d Sess. 21 (1970). While this is true in most situations the application of that principle to the construction industry is not wholly accurate. On a multi-employer construction site, it is the general contractor who contractually controls the worksite. The subcontractor’s control, for all essential purposes, is contractually limited to his specific field (e. g. electrical, plumbing, painting). Indeed, the subcontractor’s contract in this case described their duties in limited terms. Thus, it is clear that the congressional reason for placing on the employer the primary responsibility for complying with occupational hazard and safety standards does not exist in the case of these challenging subcontractors.
V
It seems likely from the foregoing that Congress did not intend to adopt a broad mandatory rule providing that in all cases employee exposure to conditions which are violations of promulgated standards would result in employer liability. Such a rule would equate the employer’s duty to comply with the statute with a broader general obligation to assure safe and healthful working conditions for his employees under all circumstances. In short the Secretary’s rule, in addition to the employer’s clear duty to comply with promulgated standards within his control (29 U.S.C. § 654(a)(2)) and his duty to avoid exposing his employees to hazardous conditions likely to cause death or serious physical harm (29 U.S.C. § 654(a)(1)), would create a still broader general duty of avoiding exposure by his employees to non-serious technical violations created and within the control of third parties.
We must consider whether, even though such a nonstatutory general duty clause has not been mandated by Congress, it may nevertheless represent a rule which the Secretary has discretion to adopt. We conclude that the Secretary’s rule involves a policy choice of such magnitude and would lead to results under the Act, not intended by the Congress, that it may not be appropriately adopted without more direct statutory authorization. An examination of the effects of the Secretary’s rule on the construction industry and the policy considerations mitigating against such a rule confirms our conclusion.
We fail to see how requiring several different employers to place a proper guard rail over an opening or along the edge of open-sided floors or intermediate rails on stairways fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive.
In any event even if the Secretary’s position on this point was correct, the benefits to be, gained from his policy must be considered in light of the other likely effects of that policy on the construction industry. To the extent that the Secretary has not allowed employers to avoid liability under the Act by contractual arrangements between the various employers, some employers have sought to place liability on the party at fault by contractual indemnification clauses that would operate whenever liability was imposed on a party not responsible for a cited violation. As these clauses continue to proliferate it will mean that the Secretary’s policy will tend unnecessarily to favor general contractors. When jobs are to be subcontracted out, it is usually the general contractor who will be bargaining from a position of strength and thus able to shift liability away from himself.
Even if contractual liability was fairly allotted to the party at fault, the Secretary’s policy of citing all employers at the site might necessitate litigation between the parties to finally affix liability. To require the parties in an ongoing relationship to resort to the courts to accomplish the objectives of fixing final responsibility for the abatement of minor hazards would seem to be an undesirable policy and one which Congress could not have intended.
In addition to the confusion that might be caused by the Secretary’s interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary’s policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to non-serious hazards.
In addition, the Secretary’s rule might cause duplicate expenditures to be made in the actual abatement of hazards by different employers. Furthermore, union contracts ordinarily require that only employees of certain crafts be permitted to undertake certain work. Thus, an electrical or other speciality subcontractor would often be required to hire additional employees in order to abate a hazard. For most subcontractors this would be uneconomical, and for small ones perhaps completely destroy the benefit of their contract. This result seems all the more curious in this situation where other subcontractors or the general contractor, who had more direct responsibility for general construction, already had the available equipment and personnel to undertake the correction of the stairway,, elevator shaft and building edges. At any rate in relation to non-serious violations we do not believe that Congress intended to subvert the well established craft jurisdiction concept or to impose burdensome expenses on subcontractors which do not have the appropriate employees to abate certain hazards.
Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution.
On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. Presumably, if it guesses wrong the owner or general contractor would have an action for all too often very substantial damages caused %y delay in the completion of a project. Whether a violation actually exists is not always easy to determine either before or even after a citation issues, since a successful contest may be brought. It is even more difficult for a subcontractor to make the correct choice in cases where a violation is non-serious, for example as in this case where the citation was for technically improper guarding devices, and not for a clearly visible total absence of guards.
To the extent that the Secretary’s policy will lead to the removal of workers from construction sites because of non-serious violations we find that policy inconsistent with the Act. Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach. The standards are to be set “in terms of objective criteria and of the performance desired.” H.Rept.No.91-1765, 91st Cong., 2d Sess. 35 (1970) (Conference Report accompanying S. 2193). The Secretary, proceeding in district court, can seek to temporarily restrain any activity on a work site in imminent danger situations. 29 U.S.C. § 662. There was significant congressional debate over this section and the extent of its scope. See, e. g. H.Rept. No.91 — 1765, supra at 40. Clearly, a non-serious violation of the promulgated standards is not the type of imminent danger Congress contemplated when they included this section. To the extent that the Secretary may achieve a shut down of a work site by citing a subcontractor for allowing his employees to be exposed to non-serious violations, that policy is inconsistent with the imminent danger provisions of the Act.
For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained.
VI
In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary’s authority or in any way frustrate the purposes of the Act. We have balanced the Secretary’s interest in enforcing his policy, and the purposes that policy serves, against the inefficient, uneconomical and inequitable effects it has on certain employers.
It is important to define precisely what effect our decision is intended to have. We have not told the Secretary whom he must hold liable where there is joint responsibility for the existence of a standard violation. Similarly, we have not held that the Secretary’s policy of imposing liability on employers for exposure to conditions that are serious violations of promulgated standards is invalid. Nor have we held that exposure by a subcontractor’s employees to a non-serious standard violation, which he created or is otherwise responsible for is impermissible. We have only held that these petitioners are not responsible for the conditions deemed non-serious violations of the promulgated standards by the Secretary and, therefore, that the Secretary’s policy of imposing liability on them merely because their employees were exposed to conditions which they neither created, caused, nor are otherwise responsible for, does not, on balance, fulfill the purposes of the Act. Since the facts of this case fall into this narrow holding, we set aside the order of the Commission in both 74-1381 and 74-1382.
. No employees from Anning-Johnson were working on the fifth floor at the time of the-inspection.
. Wright did not contest the citations issued to it.
. 29 C.F.R. § 1926.500 provides in relevant part:
Guardrails, handrails, and covers.
(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.
(b) Guarding of floor openings and fíoor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cov-' er, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.
******
(d) Guarding of open-sided fíoors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
* * * * * *
(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:
(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending;
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;
(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side;
(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;
(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.
. Initially, the penalties were set at $300, but pursuant to OSHA policy this figure was reduced.
. The subcontractors petitioned for review of the Administrative Law Judge’s decision, but no commissioner directed review and therefore the decision of the Administrative Law Judge became a final order of the Commission. 29 U.S.C. § 661(i).
. The general duty clause is not involved in this case, because by its terms the duty embodied in that clause flows only to hazards that are causing or likely to cause death or serious physical harm. In 29 U.S.C. § 666(j) a serious violation is deemed to exist “if there is a substantial probability that death or serious physical harm could result . .” This definition parallels closely the wording of the general duty clause. In the present case the Secretary has classified the violations as “non-serious” which means ones that are not likely to cause death or serious physical harm and therefore outside the scope of the general duty clause. See generally Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988 (1973).
. The standards in the present case were originally made effective pursuant to 21 U.S.C. § 653(b)(2) which provides in relevant part:
The safety and health standards promulgated under . . . Public Law 91-54, Act of August 9, 1969 . . . are superseded on the effective date of corresponding standards, promulgated under this chapter, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph . . . shall be deemed to be occupational safety and health standards issued under this chapter
The 28 C.F.R. part 1926 standards were promulgated under the Contract Work Hours and Safety Standards Act, Pub.L. 91-54, codified at 40 U.S.C. § 333. They were adopted as occupational safety and health standards pursuant to 29 C.F.R. § 1910.12. For more on the interrelationship between the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health Act see note 13, infra.
. Any employer who has received a citation for a violation of 29 U.S.C. § 654 may be fined up to $1,000 for each violation. If cited for a serious violation some fine up to $1,000 must be levied. If an employer willfully or repeatedly violates section 654 he may be fined up to $10,000. Similarly, a failure to correct a violation within the time period allowed may be fined up to $1,000 for each day during which such violation remains unabated. 29 U.S.C. § 666.
. If no notice of contest is filed within fifteen days from receipt of the Secretary’s citation, the citation and the assessment, as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. 29 U.S.C. § 659(a).
. For other cases with similar holdings see Savannah Iron & Fence Corporation, 10 OSAHRC 1 (1974) (Review Commission); Armor Elevator Company, Inc., 5 OSAHRC 260 (1973) (Review Commission); Sunray Electric Corporation, 7 OSAHRC 615 (1974) (Review Commission Judge); Star Circle Wall Systems, Inc., 3 OSAHRC 719 (1973) (Review Commission Judge); Skil-Craft Builders, Inc., 3 OSAHRC 622 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 (1973) (Review Commission Judge); Jaffie Contracting Company, Inc., 2 OSAHRC 466 (1973) (Review Commission Judge); Fireproof Products Company, Inc., 2 OSAHRC 475 (1973) (Review Commission Judge); Ellison Electric, 1 OSAHRC 547 (1972) (Review Commission Judge); FEC, Inc., 1 OSAHRC 389 (1972) (Review Commission Judge).
. See also Anning-Johnson Co., OSHRC No. 3694 (May 3, 1974) (Commission Review Ordered); Anning-Johnson Co., OSHRC No. 4409 (April 19, 1974) (Commission Review Ordered).
. See note 6, supra and accompanying text.
. There is another reason why we believe the Secretary should not force this inequitable burden on subcontractors. The standards which the challenging subcontractors in this case are accused of violating were initially adopted pursuant to the Contract Work Hours and Safety Act, 40 U.S.C. § 333. See note 7, supra. That act provided in specified construction contracts with the federal government that:
[N]o contractor or subcontractor . . . shall require any laborer . . employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards
The standards applicable in this case, see note 3, supra, do not specifically declare that exposure to non-conforming conditions will be a violation, and unlike the Contract Work Hours and Safety Act the language of OSHA’s subsection (a)(2) does not speak in strict exposure terms.
The standards adopted pursuant to the Contract Work Hours and Safety Act included the following:
(b) By contracting for full performance of a contract . . the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with• the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to .have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.
29 C.F.R. § 1926.16 (emphasis added).
This regulation was part of subpart B of 29 C.F.R. part 1926. Subpart B was not adopted by the Secretary in promulgating OSHA standards, 29 C.F.R. § 1910.12(c), but the reason for not adopting was unrelated to that part of the regulation which makes subcontractors responsible only for their own work. The foregoing language may well have precluded liability against subcontractors who allowed their employees to be exposed to conditions not caused by them but which violated promulgated standards. In any case, we were not advised that the difference in statutory language in relation to subcontractors was considered by the Secretary prior to the decision to hold them liable.
While we do not rest our decision on the manner in which the Secretary’s policy was arrived at, we do note that there is a substantial likelihood that the present policy evolved into a hard and fast rule without much consideration and certainly without comment from those likely to be affected, as is the general procedure under the Act. 29 U.S.C. § 655(b).
. As Commission Chairman Moran has stated:
In enacting this law, Congress apparently gave little thought to the unique relationship which arises when employees of a number of different employers work in and around the same job site and are subject to the hazards which may exist at that site
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_usc1sect | 710 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
GRANT v. HUNTER.
No. 3579.
Circuit Court of Appeals, Tenth Circuit.
March 5, 1948.
James B. Radetsky, of Denver, Colo., for appellant.
Eugene W. Davis, of Topeka, Kan., Asst. U. S. Atty., for appellee.
Before PHILLIPS, HUXMAN and MURRAH, Circuit Judges.
HUXMAN, Circuit Judge.
Petitioner, Cliff Grant, has appealed from an order of the United States District Court for the District of Kansas discharging a writ of habeas corpus.
On' September 13, 1935, petitioner was sentenced by the United States District Court for the District of New Mexico to a term of two years for violation of 18 U.S. C.A. § 88, and to a term of five years for violation of 18 U.S.C.A. § 347. The two sentences were made to run consecutively. He was committed to the United States Penitentiary at Leavenworth, Kansas. With the allowance for good time, he was conditionally released on April 8, 1940. On' June 11, 1940-, he committed an offense against federal law for which he was convicted by the United States District Court for the Western District of Michigan, and was sentenced to a term of seven years. After the allowance for statutory good time under this sentence, he was discharged on September 24, 1945. On that day, he was recommitted to serve the good time allowed under the previous two-year and five-year sentences.
Pursuant to 18 U.S.C.A. § 710, petitioner was allowed 887 days of good time deduction from the two-year and five-year sentences imposed by the District Court sentencing him in those cases. This good time was computed on the basis of the aggregate of the twO' sentences.
Petitioner maintains that 225 days of the total accumulated good time of 887 days were allowed on the two-year sentence and the balance on the five-year sentence. His argument is that the two sentences were separate and distinct from each other and that, therefore, when he began serving the five-year sentence, the 225 days of the total accumulated good time had fully completed the two-year sentence and that when thereafter he was recommitted, he could be compelled to serve only what remained of the five-year sentence.
There is no merit to this contention. Aside from the statutory provision to that effect, defendant is entitled to no good time deduction. In the absence of such a statute, a prisoner would be compelled to serve the full period of the sentence. We must, therefore, look to the statute to ascertain the amount of good time deduction to which a prisoner is entitled, as well as to to the method and manner in which good time is computed and applied. 18 U.S.C.A. § 710 provides for the allowance of good time. Among other things, it provides for the method of computing and allowing good time where one is serving two or more sentences. That portion of the statute dealing with this question is as follows: “When a prisoner has two or more sentences, the aggregate of his several sentences shall be the basis upon which his deduction shall be estimated.”
It is well settled that the imprisonment of one serving consecutive sentences is considered a single term, consisting of the aggregate of such sentences for the purpose of computing good time allowance. Under this construction of the statute, the credit for good time for good conduct does not accrue until such credit has been completely earned. Any good time deduction is contingent upon good conduct for the entire period of imprisonment until its allowance will end imprisonment. It follows, therefore, that all possible deduction for good time accredited to a prisoner serving consecutive sentences is destroyed by bad conduct even though such conduct occurs after one or more of the successive sentences has been served.
Petitioner remained a ward of the court when he was conditionally released, and when he breached the terms of his conditional release, he was subject to return to the penitentiary to serve the full remaining portion of the term of his sentence without credit for the allowance of any good time.
Affirmed.
Ebeling v. Biddle, 10 Cir., 291 F. 567; Mills v. Aderhold, 10 Cir., 110 F.2d 765; Eori v. Aderhold, 5 Cir., 53 F.2d 840; United States v. Greenhaus, 2 Cir., 89 F.2d 634; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Pagliaro v. Cox, 8 Cir., 143 F.2d 900.
Ebeling v. Biddle, 10 Cir., 291 F. 567; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Pagliaro v. Cox, 8 Cir., 143 F.2d 900; Morgan v. Aderhold, 5 Cir., 73 F. 2d 171.
Ebeling v. Biddle, 10 Cir., 291 F. 567; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Aderhold v. Hudson, 5 Cir., 84 F.2d 559; Aderhold v. Perry, 5 Cir., 59 F.2d 379; United States v. Nicholson, 4 Cir., 78 F.2d 468.
Gray v. Swope, D.C., 28 F.Supp. 822; Carroll v. Zerbst, 10 Cir., 76 F.2d 961; Aderhold v. Hudson, 5 Cir., 84 F.2d 559; Aderhold v. Perry, 5 Cir., 59 F.2d 379; Ebeling v. Biddle, 10 Cir., 291 F. 567.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer: |
songer_appbus | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ROYAL STANDARD INSURANCE COMPANY, Appellant, v. Robert S. McNAMARA, Secretary of Defense, United States of America, Appellee.
No. 17751.
United States Court of Appeals Eighth Circuit.
April 22, 1965.
Charles W. Stubbs of Stubbs, Maynard & Nixon, Oklahoma City, Okl., Welcome D. Pierson, Oklahoma City, Okl., James O. Garner, Fort Smith, Ark., John G. Holland, Fort Smith, Ark., and Lawrence S. Rosenstrauch, Columbus, Ga., for appellant.
Martin Jacobs, Attorney, Dept, of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Morton Hollander, Attorney, Dept, of Justice, Washington, D. C., and Charles M. Conway, U. S. Atty., Fort Smith, Ark., for appellee.
Before VOGEL, RIDGE and MEHAFFY, Circuit Judges.
VOGEL, Circuit Judge.
Royal Standard Insurance Company, appellant herein, instituted this action to obtain a preliminary and permanent injunction restraining the Secretary of Defense, appellee, from placing into effect and enforcing a Department of Defense directive. The directive upon which attack is made was issued April 15, 1964, to become effective July 1, 1964.
The purpose of the directive at issue was to establish “uniform requirements” (1) “for motor vehicle liability insurance coverage for all military and civilian personnel extended driving and parking privileges on military installations within the United States” and (2) “for the accreditation of insurers for the solicitation and sale on military installations of motor vehicle liability insurance”.
With respect to its first purpose, the regulations contained in the directive provide that “to secure and retain driving and parking privileges on military installations, all military and civilian personnel must possess motor vehicle liability insurance which meets the requirements” of the regulations. A motor vehicle liability insurance policy meets the requirments if it: (1) Complies with all statutory and regulatory requirements of the state in which the installation is located and has policy amounts not lower than the minimum limits prescribed in the financial responsibility or compulsory insurance law of that state; (2) states clearly the name and full address of the insurer; (3) provides bodily injury and property damage liability coverage for all drivers authorized by the named insured to drive the vehicle, “military endorsements excluding persons other than the named insured whether in the military or not are not acceptable”; and (4) does not contain unusual limitations or restrictions including, but not limited to (a) territorial limitations, except that if the installation is located within the United States, the standard limitation limiting coverage to the United States and Canada is acceptable;, and (b) coverage limitations which exclude liability for bodily injury to passengers and guests if such liability exists as a matter of law.
There are other provisions as well as numerous exceptions to the directive's requirements, both for defense personnel and insurers, which we find of insufficient pertinence to detail here.
On May 30,1964, the appellant filed its complaint, alleging that it is an Arkansas corporation engaged in the business of writing automobile liability insurance for military personnel; that the Secretary of Defense lacked authority to issue the April 15, 1964, directive and that if such directive is put into effect it, the appellant, will have to cease doing business. Appellant requested that the Secretary be permanently enjoined from carrying out and enforcing the directive. Appellant also sought a “temporary injunction” restraining enforcement of the directive and requiring the Secretary to issue a new directive canceling the old.
In response to an order to show cause why a preliminary injunction should not be granted, the Secretary of Defense moved for dismissal of the complaint and denial of a preliminary injunction on the following grounds, among others, that (1) appellant lacked standing to sue, (2) appellant had not exhausted its administrative remedies, (3) the action is an unconsented suit, (4) the appellant’s pleadings fail to show acts constituting irreparable injury, and (5) the Secretary acted within his authority in promulgating the regulations complained of and they are reasonable regulations. On June 10, 1964, the District Court denied the appellant’s request for a preliminary injunction and the case proceeded to trial.
Testimony of appellant’s witnesses may be briefly summarized as follows: The appellant has 27 employees. The major share of its business (79%) comes from insuring military personnel who are under 25 years of age. Servicemen in that age group are generally undesirable insurance risks and can usually get insurance coverage only through an “assigned risk pool or plan” at a rate considerably higher than that charged by the appellant. All of the appellant’s insurance policies for servicemen have the essentials of a restrictive endorsement known as a ‘‘military restriction” which provides that when the insured automobile is driven off a military installation, only the named insured and the members of his family are covered. A major shareholder of the appellant and its general manager expressed the opinion that, “It is not humanly possible” for the appellant to comply with the 1964 directive’s requirements.
Testimony for the Secretary indicated that the directive was promulgated, after consultation with the National Association of State Insurance Commissioners, the insurance industry generally, and the military departments, as a result of the Defense Department’s files containing numerous cases of unsatisfied claims and judgments against servicemen who thought they had adequate insurance. The problem resulted from insurance companies issuing endorsements limiting their liability and of companies being unsound financially, leaving the military man with either inadequate insurance or none at all. The policy reasons for adopting the state licensing provisions for insurance companies desiring on-base solicitation privileges were stated to be the lack of expertise on the part of the Defense Department in evaluating insurance companies and the fact that it was felt that military personnel residing within a state were entitled to the equal protection of state insurance laws coextensive with citizens of that state. A factor taken into consideration was that when a company is accorded on-base solicitation privileges it carries — at least to some buyers — the tacit approval of the Department of Defense that the insurance it sells is satisfactory.
At the conclusion of the trial, June 26, 1964, the trial court held: That the court has jurisdiction of the parties and that the Secretary of Defense has authority to issue directives for the use of facilities of the Department of Defense pertaining to the use of such facilities for driving and parking and also for solicitation of insurance; that neither directive is contrary to the McCarran-Ferguson Act, 15 U.S.C.A. §§ 1011-1015, and that the directive of the Secretary of Defense did not abridge the right to contract of third parties; that the exercise of powers authorized in Article I, Section 8, of the Constitution of the United States delegated by Congress to the Secretary of Defense does not violate the Ninth or Tenth Amendments of said Constitution, and that the regulations contained in the directive of the Secretary of Defense are neither arbitrary nor capricious; that the courts will not review managerial acts, not clearly arbitrary, of executive officials performed within the scope of their authority and will not substitute their judgment in such matters for that of the officials; that the directive of the Secretary of Defense was within his discretion and the court is without jurisdiction to review his actions. The court thereupon entered judgment dismissing appellant’s complaint. Subsequently appellant applied to this court for a stay pending disposition of this appeal. After oral argument, appellant’s application therefor was denied on July 28,1964.
We think the District Court was entirely correct in granting judgment of dismissal against the appellant herein. The directive had for its purpose the establishment of uniform requirements as to automobile liability insurance for military and civilian personnel who were granted driving and parking privileges on military installations within the United States and for the accreditation of insurers for the solicitation and sale on military installations of motor vehicle liability insurance. No attempt was made by the directive to regulate insurance written elsewhere or used elsewhere. It did nothing more or less than to provide that those who wished to drive or park on military establishments or to solicit insurance there had to abide by the conditions set forth.
5 U.S.C.A. § 22 provides as follows:
“ § 22. Departmental regulations. The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.”
As to the Secretary of Defense, Congress has specifically provided, 10 U.S. C.A. § 133:
“Secretary of Defense: appointment; powers and duties; delegation by
“(a) There is a Secretary of Defense, who is the head of the Department of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate. * * *
“(b) The Secretary is the principal assistant to the President in all matters relating to the Department of Defense. Subject to the direction of the President and to this title and section 401 of title 50, he has authority, direction, and control over the Department of Defense.”
With the foregoing sections as a base, the Secretary of Defense has promulgated the directive in question. We think he had a perfect right to do so. 10 U.S.C.A. § 133(b), supra, gives him the “authority, direction, and control over the Department of Defense”. 5 U.S.C.A. § 22 gives the Secretary, as the head of a department, the power to prescribe regulations, not inconsistent with law, for the government of his department. In Cafeteria & Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 1961, 367 U.S. 886, 890, 81 S.Ct. 1743, 1746, 6 L.Ed.2d 1230, the Supreme Court said:
“ * * * The control of access to a military base is clearly within the constitutional powers granted to both Congress and the President. Article I, § 8, of the Constitution gives Congress the power to ‘provide and maintain a navyto ‘make rules for the government and regulation of the land and naval forces;’ to ‘exercise exclusive legislation * * 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;’ and to ‘make all laws which shall be necessary and proper for carrying into execution the foregoing powers * * *.’ Broad power in this same area is also vested in the President by Article II, § 2, which makes him the Commander in Chief of the Armed Forces.” (Emphasis supplied.)
“Congress has provided that the Secretary of the Navy ‘shall administer the Department of the Navy’ and shall have ‘custody and charge of all * * * property of the Department.’ 10 U.S.C. § 5031(a) and (c). In administering his Department, the Secretary has been given statutory power to ‘prescribe regulations, not inconsistent with law, for the government of his department, * * * and the custody, use, and preservation of the * * * property appertaining to it.’ 5 U.S.C. § 22.”
And at page 893 of 367 U.S., 81 S.Ct. at page 1747:
“This power [to remove persons from military installations] has been expressly recognized many times. ‘The power of a military commandant over a reservation is necessarily extensive and practically exclusive, forbidding entrance and controlling residence as the public interest may demand.’ 26 Op.Atty.Gen. 91, 92. ‘[I]t is well settled that a post commander can, in his discretion, exclude all persons other than those belonging to his post from post and reservation grounds.’ JA-GA 1904/16272, 6 May 1904. ‘It is well settled that a Post Commander can, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admit them under such restrictions as he may prescribe in the interest of good order and military discipline (1918 Dig.Op.J.A.G. 267 and cases cited).’ JAGA 1925/680.44, 6 October 1925.” (Emphasis supplied.)
By the challenged directive the Secretary of Defense has exercised his authority to designate who shall be allowed to park and to drive on military reservations and who shall be allowed to solicit automobile liability insurance on reservations. To obtain these rights and privileges, the provisions of the directive must be complied with. This is nothing more than an internal affair of the Department of Defense. As was said by this court in Duba v. Schuetzle, 8 Cir., 1962, 303 F.2d 570, 576:
“The courts have refused to interfere with ordinary ministerial and discretionary decisions and conduct peculiarly within the internal workings of an executive department.”
See, also, Perkins v. Lukens Steel Co., 1940, 310 U.S 113, 131-132, 60 S.Ct. 869, 84 L.Ed. 1108; Massachusetts v. Mellon, 1923, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078.
While recognizing the express statutory authority given to the Secretary of Defense by 5 U.S.C.A. § 22 and 10 U.S.C.A. § 133(b), the appellant nevertheless maintains that the Secretary lacked the authority to attach conditions to the privileges given defense and civilian personnel of driving and parking their automobiles on government-owned military installations and the power to specify conditions precedent to the exercise of the privilege of soliciting automobile liability insurance on military estabIshments. Appellant argues that such provisions run contrary to the McCarranFerguson Act. That Act, 59 Stat. 33, as amended, 15 U.S.C.A. §§ 1011-1014, provides, insofar- as it may possibly be pertinent to the issue herein, as follows-:
Ҥ 1011. Declaration of policy
“Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
“ § 1012. Regulation by State law; Federal law relating specifically to insurance; applicability of certain Federal laws after June SO, 1948
“(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
“(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law.” -
Congressional intent in passing the Mc-Carran-Ferguson Act was stated by the Supreme Court in F. T. C. v. Travelers Health Ass’n, 1960, 362 U.S. 293, 299, 80 S.Ct. 717, 721, 4 L.Ed.2d 724:
“The MeCarran-Ferguson Act was passed in 1945. Its basic purpose was to allay doubts, thought to have been raised by this Court’s decision of the previous year in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, [64 S.Ct. 1162, 88 L.Ed. 1440], as to the continuing power of the States to tax and regulate the business of insurance. See Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429-433 [66 S.Ct. 1142, 90 L.Ed. 1342]; Maryland Casualty Co. v. Cushing, 347 U.S. 409, 413 [74 S.Ct. 608, 98 L.Ed. 806]; Securities & Exchange Comm. v. Variable Annuity Life Ins. Co., 359 U.S. 65, 99 [79 S.Ct. 618, 3 L.Ed.2d 640] (dissenting opinion).”
The Act does not confer any right upon insurance companies, including the appellant. It is merely a direction to the courts not to construe, with certain specified exceptions, any statute enacted by Congress as invalidating, impairing or superseding any state law regulating the business of insurance or imposing a tax or fee on such business. Congress by the MeCarran-Ferguson Act created no statutory rights which could possibly provide a basis for the instant suit on the part of the appellant herein.
The Administrative Procedure Act, 5 U.S.C.A. § 1009, precludes from judicial review “agency action [which] is by law committed to agency discretion”. We think that by 5 U.S.C.A. § 22, supra, and 10 U.S.C.A. § 133, supra, Congress clearly committed to the discretion of the Secretary of Defense the right to determine, by directives, the conditions upon which vehicles may be parked or driven on military installations and to determine the conditions upon which anyone should be allowed to solicit automobile liability insurance on military installations. This constituted a commitment to “agency discretion”. See Panama Canal Co. v. Grace Line, Inc., 1958, 356 U.S. 309, 317, 78 S.Ct. 752, 2 L.Ed.2d 788. Additionally, we are quite in accord with the District Court’s finding that the directive here was neither “ * * * arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;” 5 U.S.C.A. § 1009(e).
The judgment of dismissal is affirmed.
. Appellant also sought to enjoin the enforcement of a directive issued on January 19, 1961. That directive is no longer in force and was superseded by the one adopted April 15, 1964.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_respond2_3_2 | 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 concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Thomas C. HARPER, Appellant, v. Mitchell KOBELINSKI, Administrator, Small Business Administration, et al.
No. 77-1686.
United States Court of Appeals, District of Columbia Circuit.
Argued March 24, 1978.
Decided Dec. 11, 1978.
Thomas C. Harper, pro se.
Carol E. Bruce, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and Tobey W. Kaczensky, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion PER CURIAM.
PER CURIAM:
This appeal is the latest of appellant Harper's efforts, pursuant to the Privacy Act of 1974, to prevent the ássertedly unauthorized disclosure and use of a confidential file maintained by his employer, the Small Business Administration (SBA). Specifically, appellant complains that information in the file, compiled by SBA during an internal security check on him, has been revealed to a former SBA employee to aid the latter in his claim of employment discrimination against the agency. Appellant seeks an injunction against continued use of the file, and a judicial determination that some of the material incorporated therein is false and should be expunged or amended. The District Court entered a summary judgment dismissing appellant’s action on the ground that he had failed to exhaust administrative remedies. We reverse.
I
On May 25, 1976, and again on June 7 following, appellant wrote to SBA’s Director of Personnel, asking that information allegedly obtained from his security file be removed from his former fellow employee’s equal employment opportunity file. The agency’s Privacy Act Officer and its Director of Personnel advised appellant that the data at issue were not contained in records under the control of the Office of Personnel, and that this precluded them from acting on appellant’s request.
Thereafter, on August 5, appellant initiated the present suit. Appellees moved to dismiss or, in the alternative, for summary judgment, on the ground, inter alia, that appellant had not pursued his administrative recourse as required by the Privacy Act. Several procedural motions then followed in rapid succession. In order to provide an opportunity for discovery, appellant sought, and the District Court granted, an extension of the period within which to respond to appellees’ motion. Appellees countered by requesting a protective order staying discovery pending disposition of the motion for judgment of dismissal. Appellant then filed an opposition to this motion and asked for a further extension of time, again on the basis of need for discovery. Due to a clerical error, the last motion was not transmitted to the court prior to its ruling on appellees’ motion for summary judgment. Pursuant to its Rule l-l(d), the court interpreted appellant’s apparent silence as acquiescence in the motion for judgment and, on September 30, 1976, accordingly ruled in appellees’ favor.
Appellant then filed a timely motion to vacate the outstanding judgment and for reconsideration of his previously overlooked request for a second extension of time. On June 23, 1977, the District Court held that appellant’s purported need for discovery did not constitute good cause, as required by Rule 6(b) of the Federal Rules of Civil Procedure, and denied the sought-after extension of time. At the same time, the court denied appellant’s motion to vacate the September 30, 1976, judgment on the ground that appellant had not exhausted his administrative remedies.
II
Under the Privacy Act, appellant was entitled to ask SBA for “an amendment of a record pertaining to him.” He did so and his request was denied. He was not, however, told that he could appeal that determination within the agency, nor was he apprised of the established procedures for administrative review. Thus SBA did not comply with the mandate of the Privacy Act that it “inform” him not only “of its refusal to amend the record in accordance with his request” and “the reason for the refusal,” but also of “the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official.”
Because, as appellees concede, there is no record that Harper was advised of the administrative review procedure, he should not be penalized for bypassing it. His lack of knowledge of the appropriate channels of administrative review could have led him to forego that review — which might have afforded him relief — and that in turn deterred the District Court from reaching the merits of his claim.
SBA’s failure to inform appellant of his right to administrative review aligns this case with our recent decision in Hall v. United States Civil Service Commission. And SBA has expressed its willingness to now provide appellant with that , review. To this end, the judgment appealed from is reversed and the case is remanded to the District Court with instructions to retain jurisdiction pending further consideration of appellant’s claims by the agency.
So ordered.
. Pub.L. No. 93-579, § 3, Dec. 31, 1974, 88 Stat. 1897, and amended Pub.L. No. 94-183, § 2(2), Dec. 31, 1975, 89 Stat. 1057, codified at 5 U.S.C. § 552a (1976).
. Harper v. Kobelinski, Civ. No. 76-1460 (D.D.C.) (order of June 23, 1977) (unreported).
. 5 U.S.C. §§ 552a(d)(3), (g)(1) (1976).
. Harper v. Kobelinski, supra note 2 (order of Sept. 15, 1976) (unreported).
. Rule l-9(d) of the District Court provides:
Within ten days of the date of service or such other time as the court may direct, an opposing party shall serve and file a statement of points and authorities in opposition to the motion, together with a proposed order. If such opposing statement is not filed within the prescribed time, the court may treat the motion as conceded.
(Emphasis supplied).
. Harper v. Kobelinski, supra note 2 (order of Sept. 30, 1976) (unreported).
. Fed.R.Civ.P. 6(b)(1) provides in pertinent part:
When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if requests therefor are made before the expiration of the period originally [described] or as extended by a previous order .
. Harper v. Kobelinski, supra note 2.
. Id. The court stated that “[b]ecause plaintiff neglected to complete the administrative process which is a prerequisite to the filing of an action in this court, this case, as we intended in our September 30, 1976 order, must be dismissed for failure to exhaust the appropriate administrative remedies.” Id. at 3.
. 5 U.S.C. § 552a(d)(2) (1976).
. 5 U.S.C. § 552a(d)(2)(B)(ii) (1976) (emphasis supplied).
. Brief for Appellees at 12-13.
. 174 U.S.App.D.C. 468, 533 F.2d 695 (1976) (where aggrieved governmental employee did not pursue an administrative appeal from an initial adverse agency decision because he was not apprised of the availability of such an appeal, the District Court should retain jurisdiction of employee’s action pending agency review of his claim).
. Brief of Appellees at 12-13.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_othadmis | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
W. D. NOLEN, Appellant, v. Lawrence E. WILSON, Appellee.
No. 20984.
United States Court of Appeals Ninth Circuit.
Feb. 1, 1967.
W. D. Nolen, in pro. per.
Thomas C. Lynch, Atty. Gen., of Cal., John T. Murphy, Frank C. Damrell, Jr., Albert W. Harris, Jr., Robert R. Gran-nucci, Jennifer F. Bain, Deputy Attys. Gen., San Francisco, Cal., for appellee.
Before HAMLIN, JERTBERG and MERRILL, Circuit Judges.
HAMLIN, Circuit Judge.
In 1963, W. D. Nolen, appellant herein, was convicted by a jury in the Superior Court of Alameda County, California, of first degree robbery, a violation of California Penal Code § 211. He is now serving his sentence in the California State Prison at San Quentin. His conviction was affirmed on appeal by the California District Court of Appeal in an unpublished opinion, People v. Nolen, 1 Crim. 4385, June 16, 1964. During his arraignment, plea, trial and appeal, he was represented by counsel.
On March 25, 1966, appellant filed an application for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division, raising substantially the same legal issues presented to the California court on direct appeal. The application was denied by the district court and thereafter a certificate of probable cause and permission to appeal in forma pauperis was granted.
Appellant raises seven issues on appeal. He contends that during his trial (1) there was deliberate misconduct by the district attorney; (2) the court erred in denying his motion to exclude certain evidence; (3) the court erred in failing to grant a mistrial and to admonish the jury concerning the handling of an exhibit; (4) he was improperly cross-examined; (5) certain comments of the trial judge concerning the effect of an admission by a co-defendant was error; (6) the testimony of an accomplice was not sufficiently corroborated; and (7) the evidence was insufficient to support the verdict. All of these contentions were determined adversely to appellant in a carefully written opinion of the District Court of Appeal, supra.
Appellant contends that each of the claimed errors at the trial was a violation of his constitutional right to due process of law. We do not agree.
Denial of due process within the meaning of the Constitution of the United States in the trial of a criminal case in a state court sufficient to justify federal court interference is “the failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166. Hendrix v. Hand, 312 F.2d 147 (10th Cir. 1962); Chavez v. Dickson, 280 F.2d 727 (9th Cir. 1960). “[I]n the ordinary case of this kind a United States Court will refuse to grant habeas corpus if it is satisfied from the record as a whole that the state courts gave fair consideration to the issues, reached a satisfactory result, and protected the rights of the petitioner under the Constitution of the United States.” Hendrix v. Hand, supra, 312 F.2d at 149.
Respecting appellant’s first contention, the record shows that the prosecutor asked appellant on cross-examination about a gun in the glove compartment of a car driven by appellant after the robbery in question. The gun was not the one used in the robbery. No adequate objection was made concerning this examination and the motion of appellant’s counsel to strike .certain of the testimony was granted. Thereafter, appellant without objection volunteered that he had placed a gun in a purse in the automobile. The District Court of Appeal stated that the prosecutor’s cross-examination was improper. However, “the fact that a trial court error is prejudicial to defendant [does not] necessarily transform an otherwise fair trial into one which offends Fifth Amendment due process. It does not do so unless it has the effect of converting what was otherwise a fair trial into one which is repugnant to an enlightened system of justice.” Vandergrift v. United States, 313 F.2d 93 (9th Cir. 1963). In view of the circumstances concerning this testimony we hold that there was neither prejudicial error nor fundamental unfairness to appellant.
The other contentions of appellant have been carefully examined and are without merit. The evidence alleged to be erroneously admitted in point two was a gun identified by a witness as having been used in the robbery. It was properly admitted.
This gun was unloaded at the bailiff’s desk in court during the trial. Some days later during the trial appellant claimed that the unloading of the gun was prejudicial and moved to admonish the jury to disregard it. After a conference in chambers the court refused to give such admonition unless there was evidence introduced as to whether or not the gun was loaded when it came into possession of the authorities. Appellant and his counsel refused to consent to the introduction of such evidence, and the court refused to give the admonition. We see no error in this procedure.
Appellant’s contention number four is essentially the same as his contention number one. The basis of appellant’s contention number five is that while a witness for the prosecution was being examined as to statements made by a co-defendant the testimony of the witness established that in these statements the co-defendant implicated the appellant. At the suggestion of appellant’s counsel the court instructed the jury that the statements were offered only against the co-defendant and were not to be considered as any evidence against appellant. The District Court of Appeal held that the trial court had properly advised the jury of the limitation of the testimony. We agree.
In contention number six appellant states that the testimony of an accomplice was not sufficiently corroborated as required by the California Penal Code. The record shows that there was ample corroboration of this accomplice. There was no denial of due process. Cf. Lisenba v. People of State of California, supra. It also may be pointed out that under the federal rule the testimony of an accomplice need not be corroborated.
Appellant’s last contention equally has no merit. Witnesses positively identified him as having been the holdup man at the time of the robbery. Due process is denied only when there is a complete lack of evidence, Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. Obviously, there was sufficient evidence in this case to satisfy the due process standard.
A consideration of the entire case indicates there was no lack of due process during appellant’s trial and that there was no failure to observe fundamental fairness essential to the very concept of justice. Lisenba v. People of State of California, supra.
Judgment affirmed.
. No objection or request for admonition was made at this time.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_usc1sect | 316 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
John B. ADAMS and Linda B. Adams, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Melvin H. ADAMS and Lucille B. Adams, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. Melvin H. ADAMS, Jr. and Huberta A. Adams, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
Nos. 78-1570 to 78-1572.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 11, 1979.
Decided March 2, 1979.
Kent 0. Littlejohn, Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Omaha, Neb. (argued), and Michael L. Sullivan, Omaha, Neb. on brief, for appellants.
Francis J. Gould, Atty., Tax Div., Dept, of Justice, Washington, D. C. (argued), M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, and Jonathan S. Cohen, Attys., Washington, D. C., on brief, for appellee.
Before LAY, BRIGHT and STEPHENSON, Circuit Judges.
LAY, Circuit Judge.
This is a consolidated appeal by related taxpayers to review a decision of the tax court, 69 T.C. 1040 (1978), finding taxpayers liable for a deficiency of $115,969.65 in their federal income taxes for the 1972 taxable year. The deficiency is based on the tax court’s conclusion that a redemption by First Security Bank of 217 shares of its stock was a taxable dividend to the taxpayers under I.R.C. § 316(a).
The redemption was part of a purchase plan by which the taxpayers acquired the stock of First Security Bank of Sutherland, Nebraska (hereafter First Security). In August 1972 Melvin H. Adams, Jr. learned that the stock of First Security held by the Whitlake estates was for sale. The Whit-lake estates owned 335 of the 500 shares of First Security stock. The remaining 165 shares were owned by Arch W. Leu, 77.5 shares, Anne O. Watson, 77.5 shares, and John F. Fleak, 10 shares. Leu, Watson and Fleak were directors of First Security; the latter two also were officers of First Security-
The purchase plan developed by Adams called for First Security to redeem a portion of its stock, the proceeds for the redemption coming from its “Undivided Profits” account. Nebraska banking officials voiced no objection to the plan, provided the number of shares redeemed would be immediately reissued as a stock dividend so that First Security’s capital and surplus accounts would remain intact. To facilitate the purchase Adams opened a checking account in the name of “Mel Adams, Agent” at the Keith County Bank and Trust Company, of which he was president.
On October 17,1972, both Leu and Adams entered bids for the purchase of the Whit-lake estates stock. Adams also conducted negotiations with Leu, Watson and Fleak concerning their minority interests (165 shares) in First Security. The tax court found that the negotiations resulted in an agreement whereby Adams would purchase the minority shareholders’ stock for $820 per share if he were the successful bidder for the Whitlake estates stock. Adams then tendered a successful bid for the Whit-lake estates stock of $1,350 per share. Adams thereupon issued a check on the “Mel Adams, Agent” account for $452,250 to the Whitlake estates’ attorney, who in turn is-' sued Adams a receipt acknowledging payment in full. At that time there were no funds in the “Mel Adams, Agent” account. The estates’ attorney advised Adams, however, that the sale was subject to court approval. Adams gave additional checks dated October 18, 1972, totaling $135,300, drawn on the “Mel Adams, Agent” account, to the minority shareholders’ attorney for purchase of their stock. In exchange for the checks, the minority shareholders endorsed their stock to First Security. Adams instructed that the latter checks were not to be released until his bid for the estates’ stock received court approval.
On October 18, 1972, Adams, as “Mel Adams, Agent,” entered into a purchase agreement with the administrator of the Whitlake estates for the purchase of 335 shares of First Security stock for $1,350 per share. The agreement provided that the buyer, Mel Adams, Agent, “shall have the right to assign [the purchase agreement], . provided he shall remain primarily and solely responsible for its performance.”
On October 24, 1972, Adams’ bid for the Whitlake estates stock received court approval. On that same date Adams deposited the proceeds of a loan for $135,300 in the “Mel Adams, Agent” account. The checks issued to the minority shareholders then cleared the account. Also on October 24 the certificates representing the stock owned by the Whitlake estates were delivered to Adams, of which 52 shares were endorsed to First Security. The remaining 283 shares were endorsed to Adams.
On October 25, 1972, First Security issued a stock certificate to Adams for the 283 shares transferred by the Whitlake estates. Adams endorsed the certificate as follows:
Transferee No. of Shares
John B. Adams 10
Melvin H. Adams 20
Huberta A. Adams 10
Lucille B. Adams 10
Mel Adams 233
The new purchasers of First Security, i. e., the taxpayers, then held a special shareholders meeting. The minutes of that meeting recite that “Mel Adams had purchased the Bank initially for the group [taxpayers] as Mel Adams, Agent, . . . The minutes further recite that the taxpayers agreed “that 218 (sic) shares of stock be retired in the following manner:
Payment to minority stockholders for
165 shares at $820/share = $135,300
Payment to estate stockholders for
53 (sic) shares at $1350/share = 71.550
Total $206,850
and a stock dividend be issued effective this date for 218 (sic) shares . . . In keeping with their agreement taxpayers caused First Security to redeem 217 shares which had been endorsed to First Security. Simultaneously taxpayers caused First Security to reissue 217 shares to Adams as a stock dividend.
On October 30, 1972, Adams deposited in the “Mel Adams, Agent” account the sum of $587,550, of which $380,700 represented the proceeds of a loan obtained by Adams and $206,850 represented the proceeds of First Security’s redemption of 217 shares of its stock. The check of $452,250 for the Whitlake estates’ stock then cleared the account. Adams used the remaining $135,-300 to cover a prior debt for that amount.
The tax court considered the transaction as one in which the taxpayers, having acquired all of First Security’s issued and outstanding stock, caused First Security to redeem 217 shares of its stock for $206,580. Applying the guidelines set forth by this court in Sullivan v. United States, 363 F.2d 724 (8th Cir. 1966), cert. denied, 387 U.S. 905, 87 S.Ct. 1683, 18 L.Ed.2d 622 (1967), the tax court found that First Security’s redemption of its stock, when coupled with the simultaneous reissuance of 217 shares as a stock dividend, resulted in no change in the capital and surplus accounts and a distribution of $206,850 out of its earnings and profits. Accordingly, the tax court concluded that the taxpayers constructively, if not directly, received a taxable dividend.
On appeal taxpayers argue that the tax court erroneously characterized the issue. Taxpayers contend that First Security redeemed its stock not from themselves but from the selling shareholders. Accordingly, they urge the relevant inquiry should be whether First Security’s redemption of stock relieved the taxpayers of a primary and unconditional obligation to purchase the redeemed stock, for only if taxpayers’ obligation to purchase the redeemed stock was primary and unconditional would they incur tax liability for First Security’s action. Taxpayers argue that Adams’ bid to acquire all 335 shares owned by the Whit-lake estates was conditioned upon a simultaneous redemption by First Security of a portion of the Whitlake estates’ stock. Concerning the redemption of the remaining 165 shares taxpayers argue that Adams simply agreed to cause First Security to redeem such shares if he obtained control of First Security through acquisition of a controlling portion of the Whitlake estates stock.
Taxpayers seek the tax consequences of a “bootstrap” stock acquisition wherein a corporation redeems a portion of its stock owned by the existing or selling shareholders, thereby allowing the purchaser to acquire the corporation by paying only for the balance. Under this transaction, if properly structured, the purchaser would realize no taxable income due to the redemption of stock held by the selling shareholder. When the corporation redeems stock which a purchasing or continuing shareholder is not primarily and unconditionally obligated to buy, the remaining or purchasing shareholder does not receive a taxable distribution. Sullivan v. United States, supra; Holsey v. Commissioner of Internal Revenue, 258 F.2d 865, 868 (3d Cir. 1958); Wall v. United States. 164 F.2d 462, 464 (4th Cir. 1947); Rev.Rul. 69-608, 1969-2 C.B. 42; B. Bittker & J. Eustice, Federal Income Taxation of Corporations & Shareholders 19.25 (3d ed. 1971). On the other hand, if the corporation redeems stock which the continuing or purchasing shareholder is primarily and unconditionally obligated to buy, the remaining or purchasing shareholder does receive a benefit and is deemed to have received a taxable dividend under I.R.C. § 316(a).
The tax court found it unnecessary to consider whether taxpayers were relieved of an unconditional obligation since the operative facts did not involve a so-called bootstrap acquisition. We agree. The tax court found that the taxpayers acquired the stock on their own behalf and then, after becoming the sole shareholders, caused the corporation to redeem their stock. Compare Television Industries, Inc. v. Commissioner of Internal Revenue, 284 F.2d 322 (2d Cir. 1960); Lowenthal v. Commissioner of Internal Revenue, 169 F.2d 694 (7th Cir. 1948); Rev.Rul. 59-286, 1959-2 C.B. 103; Jassey, The Tax Treatment of Bootstrap Stock Acquisitions: The Redemption Route vs. The Dividend Route, 87 Harv.L.Rev. 1459, 1465 & n.20 (1974). The evidence clearly supports this finding.
The tax court also found that Adams -was not an agent of either First Security or the minority shareholders and concluded that he must have acquired all the shares for himself and his family. We think the record supports the tax court’s conclusions. The evidence is undisputed that Adams “acquired” all the stock as “Mel Adams, Agent.” Taxpayers concede that the minority shareholders’ stock was delivered to Mel Adams, but argue that it was nonetheless endorsed to First Security. It is clear, however, that at that time of the endorsement the taxpayers were already the beneficial owners of that stock as well as the 52 shares from the Whitlake estates. Before the stock was redeemed Adams had given the full consideration of $135,300 to the minority shareholders and the check had cleared the agent’s account. The monies received from First Security upon redemption of the stock was controlled by Adams and transferred to the agent account. It is clear that Adams, if not the owner, was the beneficial owner of the stock at the time of redemption. Compare Robert Deutsch, 38 T.C. 118 (1962). The 52 shares of stock purchased from the Whitlake estates were acquired pursuant to an agreement which recited that Adams was primarily and solely responsible for the purchase of such stock.
Taxpayers urge that the tax court erred in requiring a “business purpose test” and in suggesting that First Security could not redeem its . stock from different stockholders at different prices. It is clear, however, that the tax court’s finding that taxpayers owned or controlled all of the stock at the time of redemption is not dependent on either finding. Since the evidence supports the tax court’s conclusion we need go no further.
Where “the stock is in reality purchased by a remaining shareholder and paid for by the corporation, then, regardless of the form of the transaction, the payment will be considered a dividend to the shareholder who made the purchase.” Rev.Rul. 58-614, 1958-2 C.B. 920, 920-21. We find this proposition controlling here.
The decision of the tax court is affirmed.
. The individual deficiencies of the taxpayers are:
John B. Adams and Linda B. Adams $ 787.55
Melvin H. Adams and Lucille B. Adams 6,480.04
Melvin H. Adams, Jr. and Huberta A. Adams' ‘ 108,702.06
$115,969.65
. Section 302(a) provides that if a corporation redeems its stock, such redemption shall be treated as a distribution in part or full payment in exchange for the stock, subject to the limitation in § 302(b) that the rule shall apply only if the redemption is not essentially equivalent to a dividend. A dividend is defined by § 316(a) to mean any distribution of property made by a corporation to its shareholders.
. The Whitlake estates refer to the estate of Frank E. Whitlake, which owned 257.5 shares of First Security stock, and the estate of Caroline C. Whitlake, which owned 77.5 shares of First Security stock.
. In the tax court the taxpayers urged that Adams was First Security’s agent and therefore the redemption resulted in no taxable dividend. See Fox v. Harrison, 145 F.2d 521 (7th Cir. 1944). There was no evidence to support this theory and the tax court properly rejected this claim. Taxpayers have abandoned this theory on appeal.
. It is clear that “ ‘the business purpose of a transaction is irrelevant in determining dividend equivalence’ under § 302(b)(1).” United States v. Davis, 397 U.S. 301, 312, 90 S.Ct. 1041, 1048, 25 L.Ed.2d 323 (1970). Under an earlier view a bona fide business purpose was included in a set of guidelines for determining dividend equivalency. See Sullivan v. United States, 363 F.2d at 728.
. The Commissioner similarly concedes this view to be incorrect. See, e. g., Nipp v. Puritan Manufacturing & Supply Co., 128 Neb. 459, 259 N.W. 53 (1935).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
BEWAL, INC., a corporation of Kansas; and Benjamine C. Edwards, Jr., Appellants, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a corporation of Delaware, Appellee.
No. 6445.
United States Court of Appeals Tenth Circuit.
June 7, 1961.
Rehearing Denied July 26, 1961.
Wayne Coulson, Wichita, Kan. (Lloyd F. Cooper, John H. Widdowson, and Richard A. Loyd, Wichita, Kan., on the brief), for appellants.
Edward A. Haight, Chicago, 111. {George B. Powers and Malcolm Miller, Wichita, Kan., and Harold J. Kinney and Stanley G. DeLaHunt, St. Paul, Minn., on the brief), for appellee.
Before PICKETT, LEWIS and BREI-TENSTEIN, Circuit Judges.
PICKETT, Circuit Judge.
Minnesota Mining and Manufacturing Company, a Delaware corporation, brought this action alleging that its patent No. 2,714,066 had been infringed by the defendants, Bewal, Inc., which was sales agent for Polychrome Corporation, the manufacturer of the accused product, and Benjamine C. Edwards, Jr., who was president of Bewal, Inc. The defense included a denial of both the validity of the patent and the infringement. The trial court found that the patent is valid and had been infringed. The defendants were enjoined from further infringement, and the matter was referred to a master for a determination of damages.
The patent relates to a presensitized lithographic plate used in printing. Lithography is a process of printing from a plane surface without raised type or engraved images. To accomplish the desired results, the plates are required to have a printing image which repels water and retains greasy ink, and a non-image surface which retains water. The process employs the principle that oil and water do not mix. The effective use of the plate depends upon its ability to attract ink only on the image area. Customarily, the plate is mounted on a cylinder in a press, and, as it revolves, the plate is dampened with water, and the image area is supplied with the required ink, which is repelled by the damp, non-image surface. The plate is then pressed against the rubber surface of an offset cylinder which removes the ink and transfers it to the paper.
The patent in suit describes the invention as being:
“especially concerned with a plate formed from a thin metal sheet having at least one surface thereof treated to provide a tightly bonded, thin, preferably inorganic, hydrophilic surface treatment, formed from a solution of an alkali metal silicate, silicic acid, or other treating agent which will form a permanently hydrophilic scum-preventing and tone-reducing film overlying and in firmly-bonded contact with the surface of the plate, and having a coating of light-sensitive organic material such as a light-sensitive diazo resin or other light-sensitive organic nitrogen-containing material over the exposed hydrophilic treated surface, i. e., over the exposed surface of the scum-preventing and tone-reducing film or treatment. The light-sensitive material is preferably a water-soluble, rapidly light-insolubized organic compound, especially a diazo type of light-sensitive material, as more fully described below.”
The principal purpose of the invention is to provide presensitized planographic plates with dimensional stability which are ready for exposure through a negative or stencil, without further treatment, even after storage for a substantial length of time. Jewett and Case sought to create a plate free of the disadvantages of those generally in use, particularly the necessity of exposure and development immediately after the application of the sensitizer. They discovered that when a diazo resin was used as a sensitizer on a sheet of aluminum the metal and diazo reacted with each other, causing a rapid deterioration. They found the answer to this by-treating a clean, smooth aluminum sheet with a solution of aqueous sodium silicate which provided a water-retaining surface, or thin film, on the aluminum sheet, and shielded the layer of diazo light-sensitive material from the aluminum. This treatment eliminated the deteriorating effect of reaction with the aluminum during storage. The key to the success of the process was in the protective film on the metal sheet resulting from the silicate treatment. The discovery of the patentees was not the recognition that such film was desirable, but what film would do the job. Application of Jewett [& Case] 247 F.2d 953, 45 CCPA 714. These plates could be prepared for the press by a lithographer in far less time than the old ones, and less training was required for those using them. A better quality of printing resulted from the smooth plate. The plates were unique in the industry, and had immediate commercial success.
The defendants agree that there was no presensitized lithographic plate in the prior art which anticipated the one described in the plaintiff’s patent, but urge that every process used therein was well-known, and that the process described by the patent was only an aggregation of the known processes which were obvious to a person having ordinary skill in the art. The trial court, as did the Patent Office, considered the principal patents and the literature relied upon by the defendants, and found that none of the prior art had anticipated the invention of the patent in suit, and that the Patent Office had overlooked no material matter in the prior art and publications. It is quite clear from the evidence that the printing industry had for many years sought a presensitized lithographic plate which would retain stable dimensions, provide a good press life, and could be stored without deterioration, and that these requirements were first met by the Jewett and Case plate.
A duly issued patent is presumed to be valid, and the burden of establishing invalidity rests on the party asserting it. 35 U.S.C.A. § 282. The presumption, which includes the implication that the patent was not anticipated by prior knowledge and use, may be overcome only by clear and convincing evidence. Jamco, Inc. v. Carlson, 10 Cir., 274 F.2d 338; Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811; Oliver United Filters, Inc. v. Silver, 10 Cir., 206 F.2d 658, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416; Insul-Wool Insulation Corp. v. Home Insulation, Inc., 10 Cir., 176 F.2d 502. The presumption of validity is strengthened in cases in which the developments relied upon to show invalidity because of anticipation were before the Patent Office. Saul v. International Harvester Co., 7 Cir., 276 F.2d 361; Cold Metal Process Co. v. Republic Steel Corp., 6 Cir., 233 F.2d 828, certiorari denied 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86.
When old elements are united in such a manner that the union accomplishes either a new result or an old result in a more facile, economical and efficient way in a particular environment which presented peculiar and difficult problems, it is a true combination and patentable. Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., supra, 260 F.2d at page 816; Oliver United Filters, Inc. v. Silver, supra. Cf. Hutchinson Mfg. Co. v. Mayrath, 10 Cir., 192 F.2d 110, certiorari denied 343 U.S. 914, 72 S.Ct. 647, 96 L.Ed. 1329. In Oliver United Filters, Inc. v. Silver, supra, a patent was issued on a combination of parts and developments, all well known to the industry, but the result was one which the manufacturers of beet sugar had unsuccessfully sought for many years. The defense of invalidity was similar to that presented in the instant case. In discussing the applicable law, we said, 206 F.2d at page 662:
“Silver does not contend that he originated any one of the elemental parts or steps of his inventions. He urges, and the patent office agreed, that he was the first to conceive of the use of the combination which is employed in his apparatus and process, and that his invention is in the combination and not in the elements. He readily concedes that all the elements of his combination were known to the art long prior to his inventions but contends that his combination is new. The law is that a combination of old elements is patentable if it accomplishes either a new or an old result, ‘in a more facile, economical, and efficient way in a particular environment which presented peculiar and difficult problems.’ Harris v. National Machine Works, Inc., 10 Cir., 171 F.2d 85, 88, certiorari denied 336 U.S. 905, 69 S.Ct. 491, 93 L.Ed. 1070; Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034; Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 332, 29 S. Ct. 503, 53 L.Ed. 816; Williams v. Hughes Tool Co., 10 Cir., 186 F.2d 278, 281, certiorari denied 341 U.S. 903, 71 S.Ct. 612, 95 L.Ed. 1342; Haynes Stellite Co. v. Osage Metal Co., Inc., 10 Cir., 110 F.2d 11, 15; Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 506, 512. In Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162, it was said that, ‘The function of a patent is to add to the sum of useful knowledge’, and that to constitute invention, ‘The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds e sum of its parts is the accumulation of old devices patentable.’ * But see, 1 Deller, Walker on Patents (Deller’s Ed., Supp.1960.)
While it is true that Jewett and Case brought together known processes which, viewed in retrospect, appeared to be very simple, yet the methods attempted in the prior art did not lead to a metal presensitized plate even though a need and a ready market therefor had long existed. It was not until after the plaintiff’s plate had been marketed that the invention became obvious even to the leaders in the industry who had attempted to find an answer to the demands. “The fact that others skilled in the art in quest for a solution of the problem failed and that [patentee] first conceived the combination of elements, arrangements and mode of operation embodied in the patent in suit is persuasive evidence that he exercised inventive genuis and not mere mechanical skill.” Steiner Sales Co. v. Schwartz Sales Co., 10 Cir., 98 F.2d 999, 1003, certiorari denied 305 U.S. 662, 59 S.Ct. 364, 83 L.Ed. 430; Accord, Stearns-Roger Mfg. Co. v. Ruth, 10 Cir., 62 F.2d 442.
The evidence is without substantial conflict that plaintiff’s invention, as set forth in the claims of the patent, accomplished a new and improved result in a more facile, economical and efficient manner, and solved a peculiar and difficult problem in a particular environment. It made an important contribution to the sum of useful knowledge concerning lithographic plates which was definite and novel, and was not such that at the time it would have been obvious to a person having ordinary skill in the art of lithography.
The trial court found that each of the claims of the patent in suit was infringed by the accused “dualkote” and “alkote” presensitized plates manufactured by Polychrome Corporation and sold by the defendants. The patent claims refer to a film formed on the surface of an aluminum sheet through the reaction of an aqueous solution of soluble silicate which is “substantially free from water-soluble material.” Defendants urge that the Polychrome plate is distinguishable from that of the plaintiffs in that, after the silicate treatment, the surface of the aluminum sheet is not substantially free from water-soluble material. Although there is evidence to the effect that the accused plate, before the application of the light-sensitive diazo resin, is not free from water-soluble material, the difference in the amount of such material on the two plates is so insignificant that it cannot be considered as being without the teaching of the patent. The defendants cannot avoid the provisions of the patent by adding water-soluble materials unless, of course, the added materials create a result wholly different from those of the patent.
The evidence is without con flict that plaintiff’s plate and the ac cused plate are almost indistinguish able.
The court found:
“They employ substantially the same means, are used in substantially the same manner, and produce substantially identical results. Their surface is smooth, as defined in the patent, and very different from the surface of the various prior art mechanically grained and deeply etched plates. The silicate surface of the accused plates is substantially free of water soluble materials, within the meaning of the patent and the claims thereof.”
Colorable differences without substance do not avoid infringement. Southwestern Tool Co. v. Hughes Tool Co., 10 Cir., 98 F.2d 42; Skinner Bros. Belting Co. v. Oil Well Improvements Co., 10 Cir., 54 F.2d 896. The test of infringement is “whether the two devices do the same work in substantially the same way to accomplish substantially the same result.” Williams Iron Works Co. v. Hughes Tool Co., 10 Cir., 109 F.2d 500, 503. Accord, Jamco, Inc. v. Carlson, supra; Oliver United Filters, Inc. v. Silver, supra. All the witnesses agree that the accused plates do the same work as plaintiff’s plates, and accomplish almost exactly the same result. The infringement is clear.
The defendant Edwards was a majority stockholder, president, and general manager of the defendant Bewal, Inc., which was incorporated in 1952 to perform a contract with plaintiff for the distribution of its plates in a specific area. While Bewal, Inc. was still employed as the distributor for plaintiff’s product, he arranged with Polychrome to sell its presensitized plates as an exclusive dealer in the same territory. With the cooperation of Polychrome, he sought to direct customers and users of plaintiff’s plates to those of Polychrome. During this time he wrote to Polychrome stating, “Minnesota Mining is having a ‘fit’ ”, and “so far, we are making monkeys of them. * * #» “Whoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C.A. § 271(b). Corporate officers are not liable for patent infringement where they have not been active other than as such officers, but if they wilfully and knowingly participate in, induce and approve acts of infringement, they are liable with the corporation for the wrongful acts. Southwestern Tool Co. v. Hughes Tool Co., supra; 3 Deller, Walker on Patents § 442 (Deller’s Ed., 1937). The finding that Edwards, by his conduct, “aided, participated in, approved, ratified and induced the sale and distribution by Bewal of the Polychrome presensitized metal lithographic plates” is not clearly erroneous.
Finally it is contended that there was fraudulent conduct in the prosecution of the application in the Patent Office and that plaintiff’s conduct during the trial of this ease was such that equitable relief should be denied. It is urged that the information leading to the patent process was furnished to the patentees by third parties, Lithoplate, Inc., and Elmer Deal, its president. The argument is that plaintiff received from Lithoplate, Inc. each element needed to complete the plate finally described in the patent; that it was Jewett’s purpose to copy Lithoplate, Inc.’s combination and substitute some other intermediate protective layer for the recommended cellulose acetate; and that all that was necessary for this change was to turn to the prior art to find that sodium silicate, which had been suggested by Deal in a meeting at St. Paul, Minnesota, would serve the purpose. In unrestrained language, defendants refer to some of the representations made in the Patent Office as “bare face falsehoods” ; they state that plaintiffs “stole” the formula from Lithoplate; and refer to “Jewett’s perjury” in efforts to conceal the source of his knowledge.
The trial court found, “Jewett and Case are the first, original and joint inventors of the invention defined in the claims of the patent in suit. They did not derive the invention from either Lithoplate, Inc., Deal, Richlin, or anyone else.” This finding is sustained by the evidence. Lithoplate, Inc. was engaged in the manufacture of lithographic plates and was desirous of developing a marketable presensitized plate. There were negotiations and discussions between plaintiff and Deal, representing Lithoplate, together with its chief technical advisor Richlin, from November of 1949 to March or early April of 1950. These discussions, along with some experiments, were primarily directed toward the development of a plate with a cellulose acetate film, laminated to metal, having an exposed surface of the acetate hydrolized, and coated with a diazo light-sensitive resin. It was thought that the film of cellulose acetate might be successful on an etched metal plate. The possibility of sensitizing the surface of a plastic film, and then laminating it to a metal or paper backing was also discussed. These discussions and negotiations bore no fruit and were terminated by a letter from the vice-president of plaintiff on April 10, 1950. The ideas considered by the parties were old, and Lithoplate did not claim to be the inventor of any of them. A disclosure to the Patent Office of these negotiations would have added little, if anything, to the material which it had. The patent refers to prior use of a cellulose acetate layer on the metal to protect the sensitizer.
The plaintiff was convinced that a formula or treatment of metal could be found which would protect the light-sensitive diazo compound from the deteriorating effect of the metal. It therefore decided to continue the study. Within a short time thereafter, Jewett and Case, while making routine experiments, found that treatment of a clean aluminum sheet in a solution of sodium silicate brought about the desired result. The plates suggested by Lithoplate were never manufactured or sold by the plaintiff. Lithoplate, Inc. continued its efforts, and during the year 1950, manufactured and sold a laminated cellulose acetate lithographic plate which proved to be unsuccessful and was discontinued in 1952. It then began to make and market a silicate treated presensitized aluminum plate. Deal testified that during the period of his discussions, experiments and negotiations with plaintiff, he disclosed, at a meeting in St. Paul, Minnesota, that the treatment of an aluminum sheet with a silicate solution might be the answer to the problem. There is no documentary corroboration of this disclosure. The memorandum of the meeting where the information was said to have been given does not mention it. The testimony is contradicted by several witnesses whom the trial court saw fit to believe. Furthermore, the so-called “steal from Deal” is an issue which cannot be determined in this action. The file history of the Jewett and Case patent contains this statement:
“However, insofar as we are aware, no one has ever previously produced any commercially acceptable presensitized metal-backed planographic plate; and no one has ever previously produced any presensitized planographic plate of any construction which will compete with grained zinc plates of the prior art, as above described, where long press life and quality reproductions are important. Our plate, on the other hand, is a presensitized metal plate, and yet will produce work with a sharpness of dots and lines, and other details, considerably beyond what can be produced with the conventional commercial albumin-coated grained zinc plates of the prior art.
“Light-sensitive diazo resins and other like light-sensitive organic materials are notably sensitive to metals. For example, Kalle British Patent No. 699,413, published November 4,1953, at page 1, points out that if water-soluble diazo compounds, or like light-sensitive substances, are coated on metal supports, a plate which can be stored in the unexposed state, i. e. a presensitized plate, cannot be made, ‘owing to the decomposition of the light-sensitive substance caused by the metal.’ Others concerned with metal plates have coated them with a substantial layer of cellulose acetate, or other material, and then hydrolyzed the surface of the acetate and coated the diazo resin or equivalent thereover. No one, insofar as we are aware, ever visualized that aluminum or other metal plates could be used to receive a coating of a light-sensitive diazo resin, or the like, by the simple expedient of first briefly treating the metal surface with an aqueous alkali metal silicate, silicic acid, or equivalent, which will give the metal a permanently hydrophilic surface, e. g. a scum-preventing surface film, and will not measurably increase the thickness of the metal plate. Furthermore, a plate made as just indicated has outstanding quality and performance characteristics, not possessed by any prior plate, and this was also entirely unappreciated heretofore, to the best of our knowledge and belief.
******
“Insofar as we are aware, prior to our invention there had never been a satisfactory presensitized metal lithograph plate; nor had there been any presensitized metal lithographic plate on the market.”
It was also represented to the Patent Office that the applicants had accomplished a result which “neither Kalle & Co. nor anyone else had been able to accomplish, and applicants thereby created a new era in the lithographic printing field.”
The trial court, in minute detail, found these statements to be true, and the findings do not appear to be clearly erroneous. They are, we think, sustained by the evidence.
We find no conduct on the part of the plaintiff, its employees, or its attorneys, during the pretrial proceedings, or in the trial of the case, which would deprive the plaintiff of the relief sought or warrant a reversal.
Affirmed.
. This patent was issued by the Commissioner of Patents on July 26, 1955 to Clifford L. Jewett and John M. Case, employees of the plaintiff, which is now the exclusive owner thereof. The patent is based upon the original application filed December 6, 1950.
. The Court’s Findings of Fact and Conclusions of Law are found in Minnesota Mining & Mfg. Co. v. Bewal, Inc., D.C. Kan., 183 F.Supp. 794, 795.
. The patent refers to the lithographic plate art as it existed at the time of this invention as follows:
“Prior to the present invention the lithographic plates employed in commerce and industry have consisted mainly of grained zinc plates, commonly produced by people who are in the business of graining plates. These grained plates are customarily supplied to a large number of shops throughout the country that make finished plates for the printer and lithographer. These shops coat the grained zinc plates with a suitable composition, normally colloidal and most usually an albumin, ammonium bichromate solution and then, following drying, promptly expose the sensitized plate, through a suitable stencil or negative, to secure the desired image, then apply a developing ink (by swabbing) to the entire surface of the plate, then wash the entire plate with water to wash off the unexposed colloidal and water-soluble materials and developing ink adhering thereto (which develops the image, whereupon the plate maker can see whether he has a good plate and the light-reacted albumin-bichromate layer is thus protected from water, so that it remains ink-receptive), then they apply a gum arabio solution to the printing surface of the plate, and then supply the finished plate to the printer or lithographer, for use on his presses.”
. The following is typical of much of the testimony on the subject:
Michael H. Bruno, Research Director of the Lithographic Technical Foundation, testified: “ * * * Lithographic Technical Foundation is responsible for a good many developments in lithography, but I consider the 3-M plate as one of the most significant advancements in lithography in the last twenty years.”
Ralph B. Mason, a research chemist at the Aluminum Research Laboratory of the Aluminum Company of America, the named inventor in a patent referred to in Patent No. 2,714,066, stated: “Affiant believes that the development of a presensitized plioto-oifset plate, or presensitized printing plate, on a metal base, represented a truly significant step forward in the printing plate art and, practically and commercially, represented a new use of aluminum.”
“Commercial success in itself is not sufficient to sustain a patent but it is evidence of its validity and in doubtful eases may be the deciding factor. * Oliver United Filters v. Silver, 10 Cir., 206 F.2d 658, 663, certiorari denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416. See 1 Deller, Walker on Patents § 44. (Deller’s Ed. 1957.)
. In Dow Chem. Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 330, 65 S.Ct. 647, 651, 89 L.Ed. 973, the Court said: “It is elemental that the mere substitution of equivalents which do substantially the same thing in the same way, even though better results may be produced, is not such an invention as will sustain a patent.” Accord, Consolidated Electrodynamics Corp. v. Midwestern Instruments, Inc., 10 Cir., 260 F.2d 811.
. In its findings, the court referred to the patents and publications relied on by defendants at the trial as follows:
“Although defendants originally relied upon more than thirty prior art patents and publications, at the pretrial on January 30, 1960, defendants restricted the prior patents and publications, to be relied upon by them at the trial, to the following :
U. S. “ “ 1,946,153 Edwards Feb. 6, 1934
U. S. “ “ 2,225,736 Champion Dec. 24, 1940
U. S. “ “ 2,507,314 Mason May 9, 1950
French patent No. 904,255 Kalle & Co. Feb. 19, 1945
German “ 464,051 Tutzschke Aug. 4, 1928
Canadian “ 427,626 Mason May 22, 1945
British “ 407,830 Siemens Mar. 29, 1933
British “ 433,538 Siemens Aug. 12, 1935
Report 4116, Dept, of Commerce, CIO, Report No. C-4, published July 7, 1945, entitled ‘Report on Diazo Processes Developed by Kalle and Co., A.G.J. I.O.A.’ Final Report No. 13, report prepared by J.I.O.A., Washington, D. C. Report No. C-l published June 17,1945.
“ ‘Mitteilungen des Forschungsinstituts und Profieramts fur Edelmetalle an der staatliehen Hohern Fachsehule Schwabisch Gmund 12, 1-9, 17-29 (1938).’
“Clerc publication cited by the U. S. Patent Office in file wrappers of the Jewett and Case patent.
“ ‘Lithography as Found in Germany’, article in December 1946 issue of Modern Lithography.
“Ad by Kalle & Co. in ‘Der Polygraf’, May 20, 1948 issue, page 59.
“The defendants, at the trial, placed primary reliance upon the Kalle French patent No. 904,255, the Mason Canadian patent No. 427,626, and certain other United States and foreign patents.” [183 F.Supp. 797.]
. The court also found:
“Jewett and Case were the first to produce a commercially acceptable presensitized metal lithographic plate. The materials used in its manufacture were all old. The diazo light-sensitive resin had been known for upwards of 15 years before the Jewett and Case invention. Sheets of aluminum and solutions of alkali metal silicate were much older. All were available to anyone who might have conceived of the presensitized metal lithographic plate defined in the claims of the patent in suit. No one had combined them to produce a successful plate until Jewett and Case did so; and no one had produced and offered commercially a presensitized metal plate, by any means or method, prior to the presensitized metal plate of plaintiff, made according to the Jewett and Case invention, and first sold in August, 1950.”
. In discussing the validity of a combination patent, we think the statement in Reiner v. I. Leon Co., 2 Cir., 285 F.2d 501, 503-504, is appropriate:
“The test laid down is indeed misty enough. It directs us to surmise what was the range of ingenuity of a person ‘having ordinary skill’ in an ‘art’ with which we are totally unfamiliar; and we do not see how such a standard can be applied at all except by recourse to the earlier work in the art, and to the general history of the means available at the time. To judge on our own that this or that new assemblage of old factors was, or was not, ‘obvious’ is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it. There are indeed some sign posts: e. g. how long did the need exist ; how many tried to find the way; how long did the surrounding and accessory arts disclose the means; how immediately was the invention recognized as an answer by those who used the new variant? In the case at bar the answers to these questions all favor the conclusion that it demanded more intuition than was possible by tke ‘ordinary’ workers in the field. The needs were known, but the purpose to fulfil them with that minimum of material and labor disclosed in the patent had not appeared; and economy of production is as valid a basis for invention as foresight in the disclosure of new means. In the case at bar the saving of material as compared to anything that had preceded, was very great indeed; the existing devices at once yielded to Reiner’s disclosure; his was an answer to the ‘long-felt want.’ ”
. David N. Kendall, a consulting chemist, a witness for the defendants, concerning the amount of water-soluble material found on the accused plate, testified:
“Q. You said you found 3 per cent citric acid in the water from the accused plate? A. In the 3 per cent, about 3 per cent in the Polychrome plate, yes.
“Q. Now that is 3 per cent of what? A. Three per cent by weight of the total solids extracted by water from the plates.
“Q. And what was the total? A. What was the total what?
“Q. Solids extracted by water from the plate. A. Oh, it was in the neighborhood of about 10 milligrams I would say, sir.
“Q. Now what is 10 milligrams. Is that a drop, or how can we visualize the size of that? A. Well, it might be, it is something depending on the particular housewife, it might be something like what the housewife would take as a ‘pinch’ of material, a pinch of salt or something like that.
“Q. A little bit of a pinch, and you say there was 3 per cent of a pinch of citric acid? A. I said there was 3 per cent of the total weight of sample there which is about 10 milligrams. I was just trying to visualize for you what a pinch might be. Excuse me, what 10 milligrams might be.
“Q. Well now, that 3 per cent citric acid is going to be something less than about a millionth of an ounce, isn’t it? A. It will be about .3 milligrams, sir.
“Q. And expressing that in . grams, what would that be in grams? A. It would be approximately .07 grams, sir.
“Q. .07 grams? A. Well, rounding it off, it is nearest .01 grams. Actually it is .00 with a third decimal being graded in five, sir, around seven, it would be approximately .01.
“Q. How much solids did you find in distilled water? A. There was — I don’t think I actually weighed them. It was a very small amount. I would imagine about, oh, I would guess about .5 of a gram, something like that. * * * ”
. In Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 856, 94 L.Ed. 1097, the Court said:
. The defendant Edwards testified:
“Q. Let me ask you for what uses those Alkote and Dualkote plates that you sell are sold? A. For lithographic reproduction.
“But courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for — indeed encourage —the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system.” Accord, Weiss v. It. Hoe & Co., 2 Cir., 109 F. 2d 722, certiorari denied 310 Ú.S. 639, 60 S.Ct. 1085, 84 L.Ed. 1407.
“Q. And in general they are used by the same people that have used 3M plates? A. Right.
“Q. For the same general purposes? A. Right.
“Q. With the same equipment? A. Right.
“Q. With the same or similar chemicals ? A. Right.
“Q. And with substantially the same results ? A. Right.”
Jewett testified:
“Q. There has been testimony as to the process of manufacture used by the defendant and variation of that process from the specific process disclosed in the Jewett and Case patent. Does that variation result in
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
sc_lcdisagreement | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
LEHNHAUSEN, DIRECTOR, DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS OF ILLINOIS v. LAKE SHORE AUTO PARTS CO. et al.
No. 71-685.
Argued January 15, 1973
Decided February 22, 1973
Douglas, J., delivered the opinion for a unanimous Court.
William J. Scott, Attorney General of Illinois, argued the cause for petitioner in No. 71-685. With him on the briefs was Jayne A. Carr, Assistant Attorney General. Aubrey F. Kaplan argued the cause and filed a brief for petitioners in No. 71-601.
Arnold M. Flamm argued the cause for respondents in No. 71-685. With him on the brief was Arthur T. Susman. Louis L. Biro argued the cause for respondents in No. 71-691 and filed a brief for corporation respondents M. Weil & Sons, Inc., et al. Gust W. Dickett filed a brief for respondents Shapiro et al. in No. 71-691. Edward A. Berman, Eugene T. Sherman, and Lewis W. Schlifkin filed a brief for proprietor respondents Herman, dba The Spot, et al. in both cases.
Together with No. 71-691, Barrett, County Clerk of Cook County, Illinois, et al. v. Shapiro et al., also on certiorari to the same court.
Richard B. Ogilvie, Governor of Illinois, filed a brief as amicus curiae urging reversal in No. 71-685. Louis Ancel, Stewart H. Diamond, and Samuel W. Witwer filed a brief for Proviso Township High School District No. 209 et al. as amici curiae urging affirmance in both cases. William R. Dillon filed a brief for Members of the Corporate Fiduciaries Association of Illinois as amici curiae in both cases.
Mr. Justice Douglas
delivered the opinion of the Court.
In 1970 the people of Illinois amended its constitution adding Art. IX-A to become effective January 1, 1971, and reading:
“Notwithstanding any other provision of this Constitution, the taxation of personal property by valuation is prohibited as to individuals.”
There apparently appeared on the ballot when Art. IX-A was approved the following:
“The amendment would abolish the personal property tax by valuation levied against individuals. It would not affect the same tax levied against corporations and other entities not considered in law to be individuals. The amendment would achieve this result by adding a new article to the Constitution of 1870, Article IX-A, thus setting aside existing provisions of Article IX, Section 1, that require the taxation by valuation of all forms of property, real and personal or other, owned by individuals and corporations.”
Respondent Lake Shore Auto Parts Co., a corporation, brought an action against Illinois officials on its behalf and on behalf of all other corporations and “non-individuals” subject to the personal property tax, claiming that the tax violated the Equal Protection Clause of the Fourteenth Amendment since it exempts from personal property taxes all personal property owned by individuals but retains such taxes as to personal property owned by corporations and other “non-individuals.” The Circuit Court held the Revenue Act of Illinois, as amended by Art. IX-A, unconstitutional as respects corporations by reason of the Equal Protection Clause of the Fourteenth Amendment.
Shapiro and other individuals also brought suit alleging they are natural persons who own personal property, one for himself and his family, one as a sole proprietor of a business, and one as a partnership. A different trial judge entered an order in these cases dismissing the complaints except as to Shapiro and members of his class. The trial judge held that all other provisions of Illinois law imposing personal property taxes on property owned by corporations and other “non-individuals” were unaffected by Art. IX-A, in line with the statement on the ballot, quoted above.
All respondents in both cases appealed to the Illinois Supreme Court, which held that Art. IX-A did not affect all forms of real and personal property taxes but only personal property taxes on individuals, which it construed to mean “ad valorem taxation of personal property owned by a natural person or by two or more natural persons as joint tenants or tenants in common.” 49 Ill. 2d 137, 148, 273 N. E. 2d 592, 597. As so construed, the Illinois Supreme Court held that the tax violated the Equal Protection Clause of the Fourteenth Amendment. Id., at 151, 273 N. E. 2d, at 599, one Justice dissenting. The cases are here on writs of certiorari which we granted. 405 U. S. 1039.
The Equal Protection Clause does not mean that a State may not draw lines that treat one class of individuals or entities differently from the others. The test is whether the difference in treatment is an invidious discrimination. Harper v. Virginia Board of Elections, 383 U. S. 663, 666. Where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation. As stated in Allied Stores of Ohio v. Bowers, 358 U. S. 522, 526-527:
“The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.”
In that case we used the phrase “palpably arbitrary” or “invidious” as defining the limits placed by the Equal Protection Clause on state power. Id,., at 530. State taxes which have the collateral effect of restricting or even destroying an occupation or a business have been sustained, so long as the regulatory power asserted is properly within the limits of the federal-state regime created by the Constitution. Magnano Co. v. Hamilton, 292 U. S. 40, 44 47. When it comes to taxes on corporations and taxes on individuals, great leeway is permissible so far as equal protection is concerned. They may be classified differently with respect to their right to receive or earn income. In Lawrence v. State Tax Comm’n, 286 U. S. 276, 283, a state statute relieved domestic corporations of an income tax derived from activities carried on outside the State, but imposed the tax on individuals obtaining such income. We upheld the tax against the claim that it violated the Equal Protection Clause, saying:
“We cannot say that investigation in these fields would not disclose a basis for the legislation which would lead reasonable men to conclude that there is just ground for the difference here made. The existence, unchallenged, of differences between the taxation of incomes of individuals and of corporations in every federal revenue act since the adoption of the Sixteenth Amendment, demonstrates that there may be.” Id., at 283-284.
It is true that in Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389, the Court held that a gross receipts tax levied on corporations doing a taxi business violated the Equal Protection Clause of the Fourteenth Amendment, when no such tax was levied on individuals and partnerships operating taxicabs in competition with the corporate taxpayers. Justices Holmes, Brandeis, and Stone dissented. Id., at 403-412. Mr. Justice Holmes stated:
“If usually there is an important difference of degree between the business done by corporations and that done by individuals, I see no reason why the larger businesses may not be taxed and the small ones disregarded, and I think it would be immaterial if here and there exceptions were found to the general rule. . . . Furthermore if the State desired to discourage this form of activity in corporate form and expressed its desire by a special tax I think that there is nothing in the Fourteenth Amendment to prevent it.” Id., at 403.
Each of these dissenters thought Flint v. Stone Tracy Co., 220 U. S. 107, should govern Quaker City Cab. The Flint case involved a federal tax upon the privilege of doing business in a corporate capacity, but it was not laid on businesses carried on by a partnership or private individual. It was, therefore, contended that the tax was “so unequal and arbitrary” as to be beyond the power of Congress. Id., at 158. We had not yet held that the Fifth Amendment in its use of due process carries a mandate of equal protection. But the Court in dictum stated:
“[I]t could not be said, even if the principles of the Fourteenth Amendment were applicable to the present case, that there is no substantial difference between the carrying on of business by the corporations taxed, and the same business when conducted by a private firm or individual. The thing taxed is not the mere dealing in merchandise, in which the actual transactions may be the same, whether conducted by individuals or corporations, but the tax is laid upon the privileges which exist in conducting business with the advantages which inhere in the corporate capacity of those taxed, and which are not enjoyed by private firms or individuals. These advantages are obvious, and have led to the formation of such companies in nearly all branches of trade. The continuity of the business, without interruption by death or dissolution, the transfer of property interests by the disposition of shares of stock, the advantages of business controlled and managed by corporate directors, the general absence of individual liability, these and other things inhere in the advantages of business thus conducted, which do not exist when the same business is conducted by private individuals or partnerships. It is this distinctive privilege which is the subject of taxation, not the mere buying or selling or handling of goods which may be the same, whether done by corporations or individuals.” Id., at 161-162.
While Quaker City Cab came after Flint, cases following Quaker City Cab have somewhat undermined it. White River Co. v. Arkansas, 279 U. S. 692, involved a state statute for collection of back taxes on lands owned by corporations but not individuals. The Court sustained the statute. Mr. Justice Butler, Mr. Chief justice Taft, and Mr. Justice Van Devanter dissented, asserting that Quaker City Cab was not distinguishable. The majority made no effort to distinguish Quaker City Cab beyond saying that it did not involve, as did White River, back taxes. Id., at 696.
In Rapid Transit Co. v. New York, 303 U. S. 573, an excise tax was levied on every utility but not on other business units. In sustaining the tax against the claim of lack of equal protection, the Court said:
“Since carriers or other utilities with the right of eminent domain, the use of public property, special franchises or public contracts, have many points of distinction from other businesses, including relative freedom from competition, especially significant with increasing density of population and municipal expansion, these public service organizations have no valid ground by virtue of the equal protection clause to object to separate treatment related to such distinctions.” Id., at 579.
We reached the same result in Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362, where Tennessee had used one system for making assessments under its ad valorem tax law as respects most taxpayers and a totally different one for public service corporations. So far as equal protection was concerned, we said that the grievance of the particular complainant was “common to the whole class” and not “invidious to a particular taxpayer.” Id., at 368.
Approval of the treatment “with that separateness” which distinguishes public service corporations from others, ibid., leads us to conclude in the present cases that making corporations and like entities, but not individuals, liable for ad valorem taxes on personal property does not transcend the requirements of equal protection.
In Madden v. Kentucky, 309 U. S. 83, a State laid an ad valorem tax of 50$ per $100 on deposits in banks outside the State and only 10(i per $1,000 on deposits within the State. The classification was sustained against the charge of invidious discrimination, the Court noting that “in taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Id., at 88. There is a presumption of constitutionality which can be overcome “only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.” Ibid. And the Court added, “The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Ibid. That idea has been elaborated. Thus, in Carmichael v. Southern Coal Co., 301 U. S. 495, the Court, in sustaining an unemployment tax on employers, said:
“A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the Constitution. In the nature of the case it cannot record a complete catalogue of, the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.” Id., at 510.
Illinois tells us that the individual personal property tax was discriminatory, unfair, almost impossible to administer, and economically unsound. Assessment practices varied from district to district. About a third of the individuals paid no personal property taxes at all, while the rest paid on their bank accounts, automobiles, household furniture, and other resources, and in rural areas they paid on their livestock, grain, and farm implements as well. As respects corporations, the State says, the tax is uniformly enforceable. Illinois says, moreover, that Art. IX-A is only the first step in totally eliminating the ad valorem personal property tax by 1979 but for fiscal reasons it was impossible to abolish the tax all at once.
We could strike down this tax as discriminatory only if we substituted our judgment on facts of which we can be only dimly aware for a legislative judgment that reflects a vivid reaction to pressing fiscal problems. Quaker City Cab Co. v. Pennsylvania is only a relic of a bygone era. We cannot follow it and stay within the narrow confines of judicial review, which is an important part of our constitutional tradition.
Reversed.
In 1969, the Illinois Legislature had provided for the submission of the proposed amendment to a referendum vote.
The result was either to reverse with directions to dismiss the complaints or to affirm the judgment that dismissed the complaints. Those two cases were heard by the Illinois Supreme Court along with a petition to file original suit with that court by one Maynard, who owned nonbusiness personal property, and by three school districts. That petition was dismissed.
Classic examples are the taxes that discriminated against newspapers, struck down under the First Amendment (Grosjean v. American Press Co., 297 U. S. 233) or that discriminated against interstate commerce (see Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157) or required licenses to engage in interstate commerce.
See Bolling v. Sharpe, 347 U. S. 497, decided May 17, 1954, which held that federal discrimination (in that case racial in nature) may be so arbitrary as to be violative of due process as the term is used in the Fifth Amendment.
In Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412, a State classified chain stores for purposes of a chain store tax according to the number of stores — inside and outside the State. The Court sustained the tax, saying: “The statute bears equally upon all who fall into the same class, and this satisfies the guaranty of equal protection.” Id., at 424. In Carmichael v. Southern Coal Co., 301 U. S. 495, a State laid an unemployment tax on employers, excluding, inter alia, agriculture, domestic service, crews of vessels on navigable waters, and eleemosynary institutions. The Court sustained the tax, saying: “This Court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation.” Id., at 509. And it added: “A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it.” Ibid.
Note 5, supra.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer: |
songer_respond1_1_3 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
UNITED STATES v. WRIGHTWOOD DAIRY CO. (two cases).
Nos. 7619, 7620.
Circuit Court of Appeals, Seventh Circuit.
Oct. 27, 1941.
Writ of Certiorari Granted Dec. 8, 1941.
See 62 S.Ct. 362, 86 L.Ed.-.
J. Albert Woll, U. S. Atty., of Chicago, 111., and John S. L. Yost, Dept, of Justice, and Mary Connor Myers, Dept, of Agriculture, both of Washington, D. C., for the United States.
Alvin E. Stein and Abraham Lepine, both of Chicago, 111., for Wrightwood.
Before SPARKS, KERNER, and MIN-TON, Circuit Judges.
KERNER, Circuit Judge.
These appeals involve an order, known as Order No. 41, issued by the Secretary of Agriculture pursuant to the authority conferred upon him by the Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 601 et seq. The United States brought the action under Sec. 608a(6) of the Act to enforce specifically the provisions of Order No. 41 and “to prevent and restrain” the defendant, Wrightwood Dairy Co., from handling milk in violation of the provisions of the Order. The trial court dismissed the complaint and in accordance with the prayer of defendant’s counterclaim directed the issuance of a permanent injunction restraining the Government, its officers, and agents from enforcing Order No. 41 against the defendant. No. 7619 is an appeal by the United States from the dismissal of the complaint and the granting of the defendant’s prayer for relief. No. 7620 is defendant’s cross-appeal from certain rulings of the trial court.
The purpose of Order No. 41 was to regulate the handling of milk in the Chicago, Illinois marketing area to the extent that the milk covered was in the current of interstate commerce or directly burdening, obstructing, or affecting such commerce. The mechanics of this type of regulation are so fully discussed in United States v. Rock Royal Co-Operative, Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446, that it would be bootless to restate them. It is sufficient to say that the plaintiff considered the defendant subject to the regulations of the Order because its handling of the milk was deemed to be in the current of interstate commerce as defined in —or directly burdened, obstructed, or affected interstate commerce in milk marketed within the area and the defendant therefore was a handler of milk as defined in § 8c (1) of the Act.
It is undisputed, in fact it is conceded that the defendant purchased its total daily milk requirements from approximately 70 producers located entirely within the State of Illinois. It processed the milk in its Chicago plant, never intermingled it with any milk which had crossed the state line, and sold and distributed the processed product solely within the State of Illinois in competition with the milk of other handlers in the marketing area which Order No. 41 sought to embrace. Over 60% of the milk handled in the Chicago Marketing' area was produced in the State of Illinois; the remaining milk handled in the area was produced in Wisconsin, Indiana, and Michigan.
The trial court found that the defendant’s activities were intrastate, its handling of milk was,not in the current of interstate and foreign commerce and “did not directly burden, obstruct, or affect interstate or foreign commerce in milk market with the Chicago marketing area.” The court held that the defendant was not a handler of milk as defined in § 8c(l) of the Agricultural Marketing Agreement Act of 1937, and consequently was not subject to the provisions of Order No. 41.
The basic question before this court is whether the defendant was subject to the regulations of Order No. 41 as a handler of milk under § 8c(l) of the Act. It is plaintiff’s contention that a mere showing of competition by the milk distributor with other handlers operating in a market under the regulation of an order such as No. 41 is sufficient to subject the distributor to the regulations even though its operations are wholly intrastate.
Counsel for plaintiff relies upon United States v. Rock Royal Co-Operative, supra. We are not convinced that that case sustains his position. The Supreme Court did not have before it the issue of the applicability of an order to a distributor whose activities were wholly intrastate. In that case the court said (307 U.S. at page 541, 59 S.Ct. at page 998, 83 L.Ed. 1446) : “The state order was eliminated from consideration on the understanding, not questioned here, that the milk of all four defendants is covered by the Federal Order, if valid.” Further on in the opinion the court said (307 U.S. at page '568, 59 S.Ct. at page 1010, 83 L.Ed. 1446): “There is no challenge to the fact that the milk of all four defendants reaches the marketing area through the channels' of interstate commerce.” It is true that Mr. Justice Reed then said: “Nor is any question raised as to the power of the Congress to regulate the distribution in the area of the wholly intrastate milk.” From this we believe the Supreme Court did not intend to preclude this important question, now before us, which was not an. issue in the case before it.
The case of United States v. Adler’s Creamery, Inc., 2 Cir., 107 F.2d 987, and Id., 2 Cir., 110 F.2d 482, did involve a handler of wholly intrastate milk in the New York Metropolitan marketing area. There the court held that the handler was subject to the provisions of the Order. The court relied upon the Rock Royal case, supra; Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441, and Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 652, 83 L.Ed. 1092. In so far as the court relied upon the .inapposite remark made in the Rock Royal case, we do not accept it as persuasive authority for plaintiff’s contention.
Currin v. Wallace, supra, and Mulford v. Smith, supra, certainly do not support the plaintiff’s contention when applied to the defendant’s activity in the case before this court. Currin v. Wallace merely held that Congress could regulate the auction sale of tobacco since almost all of the tobacco there sold was to go into interstate commerce. In Mulford v. Smith the record disclosed that at least two-thirds of all flue-cured tobacco sold at auction warehouses was sold for immediate shipment to an interstate or, foreign destination. The court held that the regulation was “of interstate commerce, which it reaches and affects at the throat where tobacco enters the stream of commerce — the marketing warehouse.” In the instant case, in no such degree was the handling of milk by the defendant associated with interstate commerce.
An examination of the interpretation of the comparable commerce provisions of the National Labor Relations Act likewise fails to show implicit recognition of the broad sweep of authority claimed by the plaintiff in applying Order No. 41.
A study of the various cases construing the commerce clause reveals nothing to support the plaintiff’s contention that a finding of competition with interstate handlers was sufficient to subject the defendant, in our case to the Act. It is true that cases such as Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364; United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337; and United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, prohibit certain movements into interstate commerce, but clearly the milk handled by the defendant was neither in interstate commerce nor ever intended to flow in it. And while Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815; Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; and Bedford Cut Stone Co. v. Journeymen Stone Cutters’ Ass’n, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L.R. 791, sanction action under the commerce clause when there is interference with interstate commerce before the actual movement has started, the milk handled by the defendant in our case was never going to get into interstate commerce and impinged upon it only by competing with some milk which had been in interstate commerce. It is also true that the Shreveport Case, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341; Railroad Commission of Wisconsin v. Chicago, B. & Q. R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L.Ed. 371, 22 A.L.R. 1006; Currin v. Wallace, supra, and Mulford v. Smith, supra, permit the regulation of intrastate transactions which are closely commingled with or related to the interstate commerce regulated. However, these cases do not extend to the facts before us.
The difference between a direct and indirect effect on commerce is not hard and fast; it is at best a matter of degree. The determination of degree and the resulting allocation of power over commerce rest upon the court, but that determination must ever be within the matrix of the federal system.
In Schechter Poultry Corp. v. United States, 295 U.S. 495, 520, 548, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, the unreversed findings of the Circuit Court of Appeals, 2 Cir., 76 F.2d 617, 618, were that 96% of the chickens involved under the particular code came from interstate commerce to be disposed of in New York; that the practice sought to be regulated not only demoralized the business in New York, but had national repercussions affecting and controlling the prices received by those engaged in interstate commerce. Under such circumstances the court held that the effect upon interstate commerce was only an indirect one and not sufficient to permit Congressional regulation. The effect upon commerce in the case now before us is no more direct than in the Schechter case. The only substantial difference is that in the present case none of the defendant’s milk was ever in interstate commerce. The milk’s only possible relation to interstate commerce was with some thirty odd percent of the milk in the area which had been brought into the state, processed, and then sold in competition with defendant’s.
To be sure the milk problem is a serious one and apparently for the most effective control requires unified regulations. Cf. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469, and Till, “Milk — The Politics of an Industry” at p. 431 of “Price and Price Policies.” Unfortunately, if the defendant is not subject to the regulations of Order No. 41, the result may well be that the effective sanction of the order will wither before the force of competition, the morale of the market will disintegrate, and this attempt at solution of the problem by the National Government will fail. When a problem of our present day economy requires unified action there sometime is an hiatus in the powers granted to the United States and those not prohibited to the states so that no solution will be possible without the cooperation of states and nation. That hiatus is implicit in a federal system of government. If the powers of the National Government were complete and the states were only administrative agencies whose powers existed solely at the sufferance of the National Government, this difficulty, at least, would cease to exist.
On principle, we are unable to accept plaintiff’s contention that “only one factual element is essential to subject a milk distributor whose operations are wholly intrastate in character” to the Order, and that is a showing “that such handler competes with other handlers operating in the market who are subject to the regulation.” To do so would be to subscribe to a view of causation which, as Justice Cardozo said in the Schechter case, supra, 295 U.S. at page 554, 55 S.Ct. at page 855, 79 L.Ed. 1570, 97 A.L.R. 947, “would obliterate the distinction between what is national and what is local in the activities of commerce.”
We conclude that a commodity wholly intrastate in character and handling does not directly burden, obstruct, or affect interstate commerce where the point of impingement of the intrastate transaction upon the interstate transaction is one of competition only.
We now come to a consideration of defendant’s cross-appeal by which it is claimed that the District Court failed to find that Order 41 was not in compliance with the law, that it was invalid and unenforceable and that the court erred in sustaining plaintiff’s motion to strike defendant’s fourth to eleventh defenses. In view of what we have earlier said in this opinion, we do not deem it necessary to discuss the errors assigned. The cross-appeal in No. 7620 will be dismissed. The judgment of the District Court in No. 7619 will be affirmed.
(j) “The term ‘interstate or foreign commerce’ means commerce between any State, Territory, or possession, or the District of Columbia, and any place outside thereof; or between points within the same State, Territory, or possession, or the District of Columbia, but through any place outside thereof; or within any Territory or possession, or the District of Columbia. For the purpose of this Act [chai ter] (but in nowise limiting the foregoing definition) a marketing transaction in respect to an agricultural commodity or the product thereof shall be considered in interstate or foreign commerce if such commodity or product is part of that current of interstate or foreign commerce usual in the handling of the commodity or product whereby they, or either of them, are sent from one State to end their transit, after purchase, in another, including all cases where purchase or sale is either for shipment to another State or for the processing within the State and the shipment outside the State of the products so processed. Agricultural commodities or products thereof normally in such current of interstate or foreign commerce shall not be considered out of such current through resort being had to any means or device intended to remove transactions in respect thereto from the provisions of this Act [chapter]. As used herein, the word ‘State’ includes Territory, the District of Columbia, x>ossession of the United States, and foreign nations.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
sc_caseorigin | 054 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
LINGLE, GOVERNOR OF HAWAII, et al. v. CHEVRON U. S. A. INC.
No. 04-163.
Argued February 22, 2005
Decided May 23, 2005
O’Connor, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, post, p. 548.
Mark J. Bennett, Attorney General of Hawaii, argued the cause for petitioners. With him on the briefs were Michael L. Meaney, Deputy Attorney General, Seth P. Waxman, Paul R. Q. Wolf son, Robert G. Dreher, and John D. Echeverría.
Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Malcolm L. Stewart, Mark B. Stern, and Sharon Swingle.
Craig E. Stewart argued the cause for respondent. With him on the brief were Donald B. Ayer, Michael S. Fried, and Louis K. Fisher.
Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, and John J. Sipos, Assistant Attorney General, by Bill Lockyer, Attorney General of California, Manuel Medeiros, State Solicitor General, Thomas Greene, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy Attorney General, by William Vázquez Irizarry, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, Fiti Sunia of American Samoa, Terry Goddard of Arizona, Ken Salazar of Colorado, Richard Blu-menthal of Connecticut, M. Jane Brady of Delaware, Douglas B. Moylan of Guam, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Jim Hood of Mississippi, Mike McGrath of Montana, Peter C. Harvey of New Jersey, Pamela Brown of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Gerald J. Pappert of Pennsylvania, Patrick Lynch of Rhode Island, Paul G. Summers of Tennessee, Mark L. Shurtlejf of Utah, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine 0. Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the American Planning Association by Edward J. Sullivan; for the League of California Cities by Andrew W. Schwartz; for the National Conference of State Legislatures et al. by Richard Ruda, Timothy J. Dow-ling, and Jason C. Rylander; and for the Service Station Dealers of America by Peter H. Gunst.
Briefs of amici curiae urging affirmance were filed for the Action Apartment Association, Inc., by Rosario Perry; for the Cato Institute by Richard A. Epstein; for Equity Lifestyle Properties, Inc., et al. by David J. Bradford, David W. DeBruin, and Terri L. Mascherin; for Manufactured Housing Communities of Arizona, Inc., by Michael A Parham; for the National Association of Home Builders by Michael M. Berger and Duane J. Desiderio; for the Pacific Legal Foundation et al. by R. S. Rad-ford and Nancie G. Marzulla; for the Small Property Owners of San Francisco Institute et al. by Paul F. Utrecht; and for Charles W. Coupe et al. by Kenneth R. Kupchak and Robert H. Thomas.
Justice O’Connor
delivered the opinion of the Court.
On occasion, a would-be doctrinal rule or test finds its way into our case law through simple repetition of a phrase— however fortuitously coined. A quarter century ago, in Agins v. City of Tiburon, 447 U. S. 255 (1980), the Court declared that government regulation of private property “effects a taking if [such regulation] does not substantially advance legitimate state interests____” Id., at 260. Through reiteration in a half dozen or so decisions since Agins, this language has been ensconced in our Fifth Amendment takings jurisprudence. See Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 704 (1999) (citing cases).
In the case before us, the lower courts applied Agins’ “substantially advances” formula to strike down a Hawaii statute that limits the rent that oil companies may charge to dealers who lease service stations owned by the companies. The lower courts held that the rent cap effects an uncompensated taking of private property in violation of the Fifth and Fourteenth Amendments because it does not substantially advance Hawaii’s asserted interest in controlling retail gasoline prices. This case requires us to decide whether the “substantially advances” formula announced in Agins is an appropriate test for determining whether a regulation effects a Fifth Amendment taking. We conclude that it is not.
I
The State of Hawaii, whose territory comprises an archipelago of 132 islands clustered in the midst of the Pacific Ocean, is located over 1,600 miles from the U. S. mainland and ranks among the least populous of the 50 States. Because of Hawaii’s small size and geographic isolation, its wholesale market for oil products is highly concentrated. When this lawsuit began in 1997, only two refineries and six gasoline wholesalers were doing business in the State. As of that time, respondent Chevron U. S. A. Inc. was the largest refiner and marketer of gasoline in Hawaii: It controlled 60 percent of the market for gasoline produced or refined in-state and 30 percent of the wholesale market on the State’s most populous island, Oahu.
Gasoline is sold at retail in Hawaii from about 300 different service stations. About half of these stations are leased from oil companies by independent lessee-dealers, another 75 or so are owned and operated by “open” dealers, and the remainder are owned and operated by the oil companies. Chevron sells most of its product through 64 independent lessee-dealer stations. In a typical lessee-dealer arrangement, Chevron buys or leases land from a third party, builds a service station, and then leases the station to a dealer on a turnkey basis. Chevron charges the lessee-dealer a monthly rent, defined as a percentage of the dealer’s margin on retail sales of gasoline and other goods. In addition, Chevron requires the lessee-dealer to enter into a supply contract, under which the dealer agrees to purchase from Chevron whatever is necessary to satisfy demand at the station for Chevron’s product. Chevron unilaterally sets the wholesale price of its product.
The Hawaii Legislature enacted Act 257 in June 1997, apparently in response to concerns about the effects of market concentration on retail gasoline prices. See 1997 Haw. Sess. Laws no. 257, § 1. The statute seeks to protect independent dealers by imposing certain restrictions on the ownership and leasing of service stations by oil companies. It prohibits oil companies from converting existing lessee-dealer stations to company-operated stations and from locating new company-operated stations in close proximity to existing dealer-operated stations. Haw. Rev. Stat. §§486H-10.4(a), (b) (1998 Cum. Supp.). More importantly for present purposes, Act 257 limits the amount of rent that an oil company may charge a lessee-dealer to 15 percent of the dealer’s gross profits from gasoline sales plus 15 percent of gross sales of products other than gasoline. § 486H-10.4(c).
Thirty days after Act 257’s enactment, Chevron sued the Governor and Attorney General of Hawaii in their official capacities (collectively Hawaii) in the United States District Court for the District of Hawaii, raising several federal constitutional challenges to the statute. As pertinent here, Chevron claimed that the statute’s rent cap provision, on its face, effected a taking of Chevron’s property in violation of the Fifth and Fourteenth Amendments. Chevron sought a declaration to this effect as well as an injunction against the application of the rent cap to its stations. Chevron swiftly moved for summary judgment on its takings claim, arguing that the rent cap does not substantially advance any legitimate government interest. Hawaii filed a cross-motion for summary judgment on all of Chevron’s claims.
To facilitate resolution of the summary judgment motions, the parties jointly stipulated to certain relevant facts. They agreed that Act 257 reduces by about $207,000 per year the aggregate rent that Chevron would otherwise charge on 11 of its 64 lessee-dealer stations. On the other hand, the statute allows Chevron to collect more rent than it would otherwise charge at its remaining 53 lessee-dealer stations, such that Chevron could increase its overall rental income from all 64 stations by nearly $1.1 million per year. The parties further stipulated that, over the past 20 years, Chevron has not fully recovered the costs of maintaining lessee-dealer stations in any State through rent alone. Rather, the company recoups its expenses through a combination of rent and product sales. Finally, the joint • stipulation states that Chevron has earned in the past, and anticipates that it will continue to earn under Act 257, a return on its investment in lessee-dealer stations in Hawaii that satisfies any constitutional standard.
The District Court granted summary judgment to Chevron, holding that “Act 257 fails to substantially advance a legitimate state interest, and as such, effects an unconstitutional taking in violation of the Fifth and Fourteenth Amendments.” Chevron U. S. A. Inc. v. Cayetano, 57 F. Supp. 2d 1003, 1014 (1998). The District Court accepted Hawaii’s argument that the rent cap was intended to prevent concentration of the retail gasoline market — and, more importantly, resultant high prices for consumers — by maintaining the viability of independent lessee-dealers. Id,., at 1009-1010. The court concluded that the statute would not substantially advance this interest, however, because it would not actually reduce lessee-dealers’ costs or retail prices. It found that the rent cap would allow incumbent lessee-dealers, upon transferring occupancy rights to a new lessee, to charge the incoming lessee a premium reflecting the value of the rent reduction. Accordingly, the District Court reasoned, the incoming lessee’s overall expenses would be the same as in the absence of the rent cap, so there would be no savings to pass along to consumers. Id., at 1010-1012. Nor would incumbent lessees benefit from the rent cap, the court found, because the oil company lessors would unilaterally raise wholesale fuel prices in order to offset the reduction in their rental income. Id., at 1012-1014.
On appeal, a divided panel of the Court of Appeals for the Ninth Circuit held that the District Court had applied the correct legal standard to Chevron’s takings claim. Chevron U. S. A. Inc. v. Cayetano, 224 F. 3d 1030, 1033-1037 (2000). The Court of Appeals vacated the grant of summary judgment, however, on the ground that a genuine issue of material fact remained as to whether the Act would benefit consumers. Id., at 1037-1042. Judge William Fletcher concurred in the judgment, maintaining that the “reasonableness” standard applicable to “ordinary rent and price control laws” should instead govern Chevron’s claim. Id., at 1048.
On remand, the District Court entered judgment for Chevron after a 1-day bench trial in which Chevron and Hawaii called competing expert witnesses (both economists) to testify. 198 F. Supp. 2d 1182 (2002). Finding Chevron’s expert witness to be “more persuasive” than the State’s expert, the District Court once again concluded that oil companies would raise wholesale gasoline prices to offset any rent reduction required by Act 257, and that the result would be an increase in retail gasoline prices. Id., at 1187-1189. Even if the rent cap did reduce lessee-dealers’ costs, the court found, they would not pass on any savings to consumers. Id., at 1189. The court went on to reiterate its determination that Act 257 would enable incumbent lessee-dealers to sell their leaseholds at a premium, such that incoming lessees would not obtain any of the benefits of the rent cap. Id., at 1189-1190. And while it acknowledged that the rent cap could preclude oil companies from constructively evicting dealers through excessive rents, the court found no evidence that Chevron or any other oil company would attempt to charge such rents in the absence of the cap. Id., at 1191. Finally, the court concluded that Act 257 would in fact decrease the number of lessee-dealer stations because the rent cap would discourage oil companies from building such stations. Id., at 1191-1192. Based on these findings, the District Court held that “Act 257 effected] an unconstitutional regulatory taking given its failure to substantially advance any legitimate state interest.” Id., at 1193.
The Ninth Circuit affirmed, holding that its decision in the prior appeal barred Hawaii from challenging the application of the “substantially advances” test to Chevron’s takings claim or from arguing for a more deferential standard of review. 363 F. 3d 846, 849-855 (2004). The panel majority went on to reject Hawaii’s challenge to the application of the standard to the facts of the case. Id., at 855-858. Judge Fletcher dissented, renewing his contention that Act 257 should not be reviewed under the “substantially advances” standard. Id., at 859-861. We granted certiorari, 543 U. S. 924 (2004), and now reverse.
II
A
The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides that private property shall not “be taken for public use, without just compensation.” As its text makes plain, the Takings Clause “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). In other words, it “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). While scholars have offered various justifications for this regime, we have emphasized its role in “bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960); see also Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893).
The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. See, e. g., United States v. Pewee Coal Co., 341 U. S. 114 (1951) (Government’s seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking); United States v. General Motors Corp., 323 U. S. 373 (1945) (Government’s occupation of private warehouse effected a taking). Indeed, until the Court’s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citations omitted and emphasis added; brackets in original); see also id., at 1028, n. 15 (“[E]arly constitutional theorists did not believe the Takings Clause embraced regulations of property at all”).
Beginning with Mahon, however, the Court recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such “regulatory takings” may be compensable under the Fifth Amendment. In Justice Holmes’ storied but cryptic formulation, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U. S., at 415. The rub, of course, has been — and remains — how to discern how far is “too far.” In answering that question, we must remain cognizant that “government regulation — by definition — involves the adjustment of rights for the' public good,” Andrus v. Allard, 444 U. S. 51, 65 (1979), and that “Government hardly could go on if to some extent values incident to property could not.be diminished without paying for every such change in the general law,” Mahon, supra, at 413.
Our precedents stake out two categories of regulatory action that generally will be deemed per se takings for Fifth Amendment purposes. First, where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982) (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking). A second categorical rule applies to regulations that completely deprive an owner of “all economically beneficial us[e]” of her property. Lucas, 505 U. S., at 1019 (emphasis in original). We held in Lucas that the government must pay just compensation for such “total regulatory takings,” except to the extent that “background principles of nuisance and property law” independently restrict the owner’s intended use of the property. Id., at 1026-1032.
Outside these two relatively narrow categories (and the special context of land-use exactions discussed below, see infra, at 546-548), regulatory takings challenges are governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). The Court in Penn Central acknowledged that it had hitherto been “unable to develop any ‘set formula’ ” for evaluating regulatory takings claims, but identified “several factors that have particular significance.” Id., at 124. Primary among those factors are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Ibid. In addition, the “character of the governmental action” — for instance whether it amounts to a physical invasion or instead merely affects property interests through “some public program adjusting the benefits and burdens of economic life to promote the common good” — may be relevant in discerning whether a taking has occurred. Ibid. The Penn Central factors — though each has given rise to vexing subsidiary questions — have served as the principal guidelines for resolving regulatory takings claims that do not fall within the physical takings or Lucas rules. See, e. g., Palazzolo v. Rhode Island, 533 U. S. 606, 617-618 (2001); id., at 632-634 (O’Connor, J., concurring).
Although our regulatory takings jurisprudence cannot be characterized as unified, these three inquiries (reflected in Loretto, Lucas, and Penn Central) share a common touchstone. Each aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights. The Court has held that physical takings require compensation because of the unique burden they impose: A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner’s right to exclude others from entering and using her property — perhaps the most fundamental of all property interests. See Dolan v. City of Tigard, 512 U. S. 374, 384 (1994); Nollan v. California Coastal Comm’n, 483 U. S. 825, 831-832 (1987); Loretto, supra, at 433; Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). In the Lucas context, of course, the complete elimination of a property’s value is the determinative factor. See Lucas, supra, at 1017 (positing that “total, deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation”). And the Penn Central
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Answer: |
songer_dissent | 1 | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
NATIONAL LABOR RELATIONS BOARD v. SANTA CRUZ FRUIT PACKING CO.
No. 8432.
Circuit Court of Appeals, Ninth Circuit.
July 31, 1937.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Jerome I. Macht, Joseph Rosenfarb, A. Norman Somers, and Philip Levy, Attys., Nat. Labor Relations Board, all of Washington, D. G, for petitioner.
J. Paul St. Sure and E. H. Moore, both of Oakland, Cal., for respondent.
Before WILBUR, DENMAN, and HANEY, Circuit Judges.
DENMAN, Circuit Judge.
The National Labor Relations Board by its orders of April 2, 1936, required the respondent to “Cease and desist:
“(a) From discouraging membership in Weighers, Warehousemen and Cereal Workers, Local 38-44, International Longshoremen’s Association, or in any other labor organization of its employees, by discharging or threatening to discharge any of its employees for joining Weighers, Warehousemen and Cereal Workers, Local 38-44, International Longshoremen’s Association, or any other labor organization of its employees; and
“(b) From in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment for joining Weighers, Warehousemen and Cereal Workers, Local 38-44, International Longshoremen’s Association, or any other labor organization of its employees; and
“(c) From in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act [29 U.S.C.A. § 157],”
and to take affirmative action, which the Board finds “will effectuate the policies of the Act,” (a) to offer to several discharged employees “immediate and full reinstatement, respectively, to their former positions, without prejudice to any rights and privileges previously enjoyed”; and (b) to make whole said discharged employees “for any loss of pay they have suffered by reason of their discharge by payment to each of them, respectively, of a sum of money equal to that which each would normally have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement, computed at the wage rate each was paid at the time of his discharge, less the amount earned subsequent to his discharge”; and to “post immediately notices to its employees in conspicuous places in its various offices, stating (1) that respondent will cease and desist in the manner aforesaid, and (2) that such notices will remain posted for a period of at least thirty (30) consecutive days from-the date of posting.”
The Board has filed its petition in this court for the enforcement of the orders. Respondent Packing Company appears and contests the enforcement.
The respondent admits it is engaged in the canning and packing of fruits and vegetables, 39 per cent, of which are processed to be sold to persons in other states and foreign countries and shipped to them there. Its total pack in 1935 was in excess of 1,600,-000 cases. It consisted of tomatoes and tomato products, peaches, apricots, spinach, pears, asparagus, and pork and beans, in volume, in the order named.
The respondent, relying solely on the unconstitutionality of the Labor Relations Act (29 U.S.C.A. §§ 151-166) and the proceedings of the Board, does not question that the employees were dismissed by it be-* cause some of them had engaged in the formation of the local of the union in question and all had joined it. Upon the lockout, the local caused the Oakland plant to be picketed. Violence ensued, causing hospitalization of some of the participants. The product of the plant was declared “hot” and other locals of unions — teamsters, dock clerks, scalers, seamen, and longshoremen — ■ failed or refused to handle it. Blacklisting of respondent’s products was attempted.
The Board found that the “bulk of” the agricultural products processed by the respondent came from the State of California, and the respondent contends, and we accept the contention, that substantially all of the products were produced by growers in the state. Respondent further contends, and we agree with the Contention for the purposes of this decision, that the processing of the respondent, including the loading of its product in cars, is an intrastate activity as that is held to be in the Coe v. Errol Case, 116 U.S. 517, 518, 525, 6 S.Ct. 475, 29 L.Ed. 715.
The contention also was raised that under the agreements for the sale of the products, title was transferred to the purchaser prior to the actual entry of the goods into carriage by an interstate carrier, which contention we also accept for the purposes of this decision.
It appears that the respondent had two plants; one at Oakland, California, known as the “Santa Cruz plant,” and one at Sea-bright, near Santa Cruz, Cal. The case as presented here concerns only the employees engaged at the Oakland plant and there is no showing that any of the products of the Seabright plant ever left the State of California.
We hold that so far as concerns the manufacture and shipping activities of the respondent and its employees at the Oakland plant, the labor dispute leading to the discharge of the employees, the declaration of the products as “hot,” and the sympathetic refusal of other unions to handle them, “throttled” the flow of interstate commerce and “put in jeopardy” its future flow, to the extent of the 39 per cent, of respondent’s products manufactured to be shipped into that commerce.
The respondent relies on the decisions of Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762; Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929; and others holding that manufacture, lumbering, and mining processes, including the loading on to the cars of the product, and all activities up to actual movement out of the state, as in the Coe Case, constitute intrastate production. Hence, the respondent contends, the Labor Relations Act is an attempt by the Congress to control the labor relations in such an intrastate activity and violates the provisions of the Tenth Amendment to the Constitution.
The questions for our solution are:
(1) Is the Carter v. Carter Coal Co. decision overruled by the decision of the Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 57 S.Ct. 615, 81 L.Ed. —, 108 A.L.R. 1352, so far as the former holds that the Constitution gives no power to the Congress to regulate intrastate production and manufacture of goods with respect to its labor disputes, which diminish or throttle the flow of goods intended to be and which would be shipped into interstate commerce ?
(2) Granting the Congress has such power, can it be exercised where 39 per cent, of the goods produced by the labor employed are shipped in interstate commerce and 61 per cent, remain within the state of manufacture ?
(1) Carter v. Carter Coal Co. and similar cases are overruled by National Labor Relations Board v. Jones & Laughlin Steel Corporation.
Respondent’s contention that the Carter Case is not overruled by the Jones & Laugh-lift decision is squarely' presented to this court and it would be an evasion of our judicial obligation to deny it a full consideration or attempt to evade it by asserting that it is here “not controlling.”
Three circuits, the Second, Fifth, and Sixth, relied upon the principle established in the Carter Case in holding that the National Labor Relations Act was unconstitutional. National Labor Relations Board v. Friedman-Harry Marks Clothing Co. (C.C.A.2) 85 F.(2d) 1, 2; National Labor Relations Board v. Jones & Laughlin Steel Corp. (C.C.A.5) 83 F.(2d) 998, 999; Fruehauf Trailer Co. v. National Labor Relations Board (C.C.A.6) 85 F.(2d) 391, 392.
In all three of these cases there was an antecedent import of raw materials entering into the production, over which the Labor Relations Board 'asserted the right to regulate the employer and employee. Here, the respondent asserts, is a case identical with the Carter Coal Case, in what, it insists, is the controlling fact that, as in mining coal, both the fruit and vegetables and the canned and packed product are produced in the state.
It is patent that the Carter case is identical in fact and relevant principle with that of respondent.
Unless overruled it clearly is controlling in so far as it denies the constitutional .right of the Congress to regulate labor disputes affecting substantially the volume of a manufacturer’s output which is “to be” transported in interstate commerce and which may be throttled from that transport and ultimate sale in another state unless so regulated.
Great stress is laid on the fact that the Congress has not before exercised such a power over labor relations in production of goods to be transported into interstate commerce. It is argued that if it may regulate labor disputes because it will affect the volume of goods to be transported in interstate commerce, it may regulate the volume itself of, say, shoes or clothing or furniture or food products, or the material used in the construction of housing, produced for use in other states. It is urged that all such production generally has been conceived as a matter of state control, and there are pointed out dangers of political control of such matters by bureaus in Washington. It is suggested that the Constitution was framed to meet a pioneer agricultural economy in which nearly everything consumed was grown or made on the farms or in the neighboring towns. Hence it is further urged that the framers of the Constitution never would have lodged in the Congress its powers over interstate commerce if it had envisioned an economy in which practically all the clothing wc judges wear, every object contained in the chambers in which we sit, and the major part of the material entering the construction of the building in which the court is housed, come from some state other than California.
The answer to these contentions we have made in our decision in Edwards v. U. S., 91 F.(2d) 767, decided by this court on July 22, 1937. It is that the Carter Case is overruled by the Jones & Laughlin decision; that the Constitution did give the Congress the power so to regulate interstate commerce; and that that power is plenary as to all productive activities which substantially affect or tend to throttle the volume of goods to be transported in commerce outside the state of production.
Conventional historic attitudes towards states’ rights are highly important in the political world when faced with the practicability of novel proposals of the exercise of congressional power. It may or may not be politically wise at any particular time for the Congress to proceed with caution, but this in no way concerns the judicial question of the extent of the power. To refrain from or to hesitate in decision when the question is fairly presented well may cause the paralysis and frustration of efficient legislative and executive action.
The reasoning and holding of the Edwards Case, supra, answers in the negative the first of respondent’s contentions.
(2) The specific constitutional grant of power to the Congress by article 1, section 8, to regulate commerce among the states and with foreign nations is paramount to the exercise by the states of the power of regulation of the intermingled intrastate commerce, included in the general reservation of state powers by the Tenth Amendment.
Hence, if any substantial percentage of a product produced in a state is produced to enter interstate or foreign commerce, the Congress may regulate its production, in so far as it affects the volume to enter such commerce, though such regulation also regulates a larger percentage of product which does not leave the state.
Section 8 of article 1 of the Constitution makes a specific grant of power over interstate commerce. The Tenth Amendment is a general reservation of all powers not granted. There is no limit placed on the grant, no proviso that because the states also have exercised certain powers over manufacture and other production, the Congress is to be in any way hampered in the full exercise of its regulation. The Supreme Court has repeatedly held the contrary.
Construing the general reservation of state powers by the Tenth Amendment, as affected by the specific grant of power to regulate interstate commerce of article first, § 8, of the Constitution, the Supreme Court held: “This reservation to the states manifestly is only of that authority which is consistent with, and not opposed to, the grant to Congress. There is no room in our scheme of government for the assertion of state power in hostility to the authorized exercise of Federal power. The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its' regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with the internal concerns of the state, as áuch, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere.” The Minnesota Rate Case (Simpson v. Shepard), 230 U.S. 352, 399, 33 S.Ct. 729, 739, 57 L.Ed. 1511, 48 L.R.A.(N.S.) 1151, Ann.Cas.1916A, 18.
The Jones & Laughlin Case holds that the disorganization and disturbance of labor affecting interstate commerce does not have to be of railway employees to bring it within the control of Congress. The interference as well may come from labor conditions in the intrastate business entirely different from transportation.
“The opinion in that case [Virginian Ry. Co. v. System Federation, 57 S.Ct. 592, 81 L.Ed. 789] also points to the large measure of success of the labor policy embodied in the Railway Labor Act. But, with respect to the appropriateness of the recognition 0of self-organization and representation in the promotion of peace, the question is not essentially different in the case of employees in industries of such a character that interstate commerce is put in jeopardy from the case of employees of transportation companies. And of what avail is it to protect the facility of transportation, if interstate commerce is throttled with respect to the commodities to be transported.” (Emphasis supplied.) National Labor Relations Board v. Jones & Laughlin Steel Corp., 57 S.Ct. 615, 627, 81 L.Ed. —, 108 A.L.R. 1352.
The Shreveport Case (Houston, E. & W. T. R. Co.) 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341, relied upon by the Supreme Court for its decision in the Jones & Laughlin Case, holds that a company, by the rate charge of its intrastate business, may affect the rates of its interstate business in such a way that the intrastate business rate comes within congressional regulation. The fact that both of the businesses happen to be transportation is not relevant.
The analogy between the Shreveport Case and the Santa Cruz Fruit Packing Company is complete. In each the conduct of the intrastate business, the one as to its rates and the other as to its labor, affects the interstate business arising from the activities of the respective companies. In one this is-accomplished by producing an unfair rate upon the commodities "to be” transported, and in the other by throttling the interstate business in the commodities "to be” transported. In both the intrastate business puts “in jeopardy” the proper and fair conduct of the commerce among the states. The acceptance by the Supreme Court of the doctrine of the Shreveport Case again demonstrates the overruling of the Carter Case.
The Shreveport Case does not determine the right of Congress to control the intrastate activity in rate making upon any ratio between the volume of business under the intrastate rates and under the interstate rates. In the Jones & Laughlin Case no significance is attached to the fact that 75 per cent, of the steel and other manufactured products entered interstate commerce, or that but 25 per cent, of intrastate manufacture was regulated.
Respondent is the fifth or sixth largest of the California companies processing and packing fruits and vegetables. The 39 per cent, of its business which enters into interstate commerce is a sufficiently substantial amount to warrant the Congress to make effective its regulation, even though thereby the 61 per cent, which is intrastate business is regulated with reference to labor disputes. The intermingling of the two activities does not take from the Congress the right to regulate that substantial portion over which the Constitution has specifically granted the control to the federal government.
The suggestion that we should make an academically arbitrary 50 per cent, as the boundary line between the two jurisdictions ignores the practical necessities of industry. Shall it be 50 per cent, in volume or price ? What happens when for the first 6 months of the year 60 per cent, is exported and 40 per cent, is domestic, and for the rest of the year the percentages are reversed? Does the federal control end on June 30th? On which is the burden of proof, the state interest or the federal ? How unfair may be the competition between the industry producing the 60 per cent, for export under federal regulation and its competitor with 40 per cent, under state regulation or no regulation at all!
Industry and business cannot thrive, in some cases it could not exist, in the uncertainty oí such an abstract mathematical solution of the problem. It cannot be inferred that the Congress intended to create a situation so confusing alike to employer and employee.
What are the sufficient minima of producers’ contributions to the flow of commerce to warrant congressional regulation must be decided as the questions arise. We have no doubt that the Santa Cruz Company’s contribution, both as to volume added, to interstate and foreign commerce and percentage of its output, is “affecting commerce” within the meaning of the act.
We therefore hold that the Constitution granted to the Congress the power to regulate respondent’s labor relations with reference to all of its employees at its Oakland plant engaged in the production of canned and packed fruits and vegetables, the processing of 39 per cent, of which was intended for interstate commerce and had been throttled for a considerable period from entering that commerce, although the remaining 61 per cent, remain within the state of production.
The Board’s orders to cease and desist applied to all of the employees of the respondent, but the evidence shows no shipments by respondent into interstate commerce from its Seabright plant. The orders should be modified to apply only to the employees of the Oakland plant; otherwise they should be enforced.
The orders of the National Labor Relations Board, so modified with respect to confining their effect to the employees of the Oakland plant of the respondent, are ordered enforced.
Question: What is the number of judges who dissented from the majority?
Answer: |
songer_counsel2 | 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.
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
Elwin H. V. REEVES, Jr., et ux., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 14973.
United States Court of Appeals Sixth Circuit.
March 13, 1963.
Frank W. Cubbon, Jr., Toledo, Ohio, of counsel (Cubbon & Rice, Toledo, Ohio, on the brief), for petitioners.
Alan D. Pekelner, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Meyer Rothwacks, Arthur I. Gould, Attys., Dept. of Justice, Washington, D. C., on'the brief), for respondent.
Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges.
PER CURIAM.
This ease is before the Court on petition of Elwin H. V. Reeves, Jr., and wife, taxpayers, for review of a decision of the Tax Court of the United States. The review is being prosecuted solely on the part of the husband who will be referred to as petitioner or taxpayer.
In 1954, the petitioner, Elwin Reeves,, sold a tract of farmland, consisting of fifty-eight acres, for the sum of $145,000. In his income tax return for that year he-reported a cost basis of the land as $115,-391.86, and a long term capital gain of $29,608.14. The Commissioner of Internal Revenue, in a deficiency determination, found that the capital gain on the-sale of the land was $132.974.84. This, was arrived at by finding the cost basis of the land to be $11,241.09 and allowing-$784.02 as selling expense. This cost basis included an allowance of $2,241.09’ for capital improvements.
The petitioner claims that he inherited this land from his father and that in the-appraisal of the estate, forty acres were appraised at $600 per acre, and eighteen, acres were appraised at $750 per acre. He further claims that he spent a great, deal of money over the years in capital improvements, which expenditures should be added to the cost basis of the land.
The petitioner’s father died intestate-January 12, 1919. The Tax Court found that the petitioner purchased forty acres of the land in question from his father in 1914 for $4,000 and that he purchased the other eighteen acres from his father’s estate in 1920 for $5,000. The Tax Court further found that the petitioner was unable to sustain his claim of expenditures-for improvements. It did, however, allow an increase of $1,160 in the cost basis-to represent expenditures by the taxpayer for capital improvements. Cohan v. Commissioner of Internal Revenue, 39 F.2d 540, 543, C.A.2.
The Commissioner determined additions to the tax for 1954, under section 294(d) (1) (A) of the 1939 Internal Revenue Code, for failure to file a declaration of estimated tax. The Commissioner also determined that the petitioner sold land in 1955 upon which he had a capital gain of $4,662.38. The Tax Court sustained these determinations of the-Commissioner and decided that there was an addition to the tax due for the taxable year 1954, for failure to file a declaration ■of estimated tax, in the amount.of $1,-730.44, and that there was a deficiency in income tax for the year 1955 in the amount of $163.15.
The petitioner did not ask for a review •of the addition assessed under section 294(d) (1) (A). Counsel for the petitioner in oral argument in open court waived objection to the decision of the Tax Court for the 1955 taxes. The findings of fact of the Tax Court, upon the other issues which are before us for review, are supported by the evidence and are not clearly erroneous. The scope of our review is limited to this determination. Rule 52(a) Federal Rules Civil Procedure; section 7482(a), Title 26, U.S.C.; Commissioner v. Duberstein, 363 U.S. 278, 290, 80 S.Ct. 1190, 4 L.Ed. 2d 1218; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Kreis v. Commissioner, 227 F.2d 753, 755, C.A.6. The conclusions of the trial judge, as stated in his opinion and the decision entered pursuant to the findings of fact and opinion, are in accord with applicable principles of law. The findings, opinion and decision of the trial judge are reported at Prentice-Hall 1961 T.C.Memo.Dec. 61,-132 (1961).
Counsel for the petitioner, in oral argument to this Court, raised for the first time the question that the government’s claim was barred by the statute of limitations. This defense was not set forth in the taxpayer’s petition to the Tax Court, was not suggested by the evidence before the Court, nor was there any request for leave to amend the petition in order to present that issue to the Court.
The general rule is that questions not raised in the trial courts cannot be considered in the appellate courts. Duignan v. United States, et al., 274 U.S. 195, 200, 47 S.Ct. 566, 71 L.Ed. 996; Blair, Commissioner v. Oesterlein Machine Company, 275 U.S. 220, 225, 48 S.Ct. 87, 72 L.Ed. 249; Burnet, Commissioner v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399; General Utilities & Operating Co. v. Helvering, Commissioner, 296 U.S. 200, 206, 56 S.Ct. 185, 80 L.Ed. 154; Helvering, Commissioner v. Salvage, 297 U.S. 106, 56 S.Ct. 375, 80 L.Ed. 511; Helvering, Commissioner v. Tex-Penn Oil Co., 300 U.S. 481, 57 S.Ct. 569, 81 L.Ed. 755; Helvering, Commissioner v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796.
■ In Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 722, 85 L.Ed. 1037, the court recognized three exceptions to the general rule. “These decisions and others like them, while recognizing the desirability and existence of a general practice under which appellate courts confine themselves to the issues raised below, nevertheless do not lose sight of the fact that such appellate practice should not be applied where the obvious result would be a plain miscarriage of justice. Analogous in principle is the philosophy which underlies this Court’s decisions with relation to appellate practices in other cases: those in which it has been held that a decision of the Board of Tax Appeals can be supported in the reviewing court on a new theory of law (Helvering v. Gowran, 302 U.S. 238, 246, 58 S.Ct. 154, 82 L.Ed. 224); those which have been remanded because the lower courts failed to give consideration to a phase of the case involving legal theories not presented (United States v. Shelby Iron Co., 273 U.S. 571, 579, 47 S.Ct. 515, 71 L.Ed. 781; United States v. Rio Grande Dam & Irrigation Co., 184 U.S. 416, 423, 22 S.Ct. 428, 46 L.Ed. 619.); and those in which there have been judicial interpretations of existing law after decision below and pending appeal — interpretations which if applied might have materially altered the result. (Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327, and cases there cited.)”
We find that the facts of the petitioner’s case, with reference to the defense of the statute of limitations, do not bring it within any of the exceptions to the general rule.
The statute of limitations defense cannot be raised for the first time in the Court of Appeals when not pleaded in the Tax Court. Austin Co. v. Commissioner of Internal Revenue, 35 F.2d 910, 912, C.A.6, cert. denied 281 U.S. 735, 50 S.Ct. 249, 74 L.Ed. 1150; Henry K. Given, et al. v. Commissioner of Internal Revenue, 238 F.2d 579, 583, C.A.8; Rice v. Commissioner of Internal Revenue, 295 F.2d 239, 240, C.A.5.
The cases cited by counsel for the taxpayer in support of his claim that the question of the statute of limitations can be raised for the first time in this Court are not in point. In Dobbins v. Commissioner, 31 F.2d 935, 937, C.A.3, the taxpayer made application to reopen the case so that he could raise the defense of statute of limitations but it was denied. The Court of Appeals allowed the issue to be raised on appeal for the reason that the Internal Revenue Code then provided that the bar of limitations “shall not only operate to bar the remedy, but shall extinguish the liability.” Revenue Act of 1926, Section 1106(a), 44 Stat. 9, 113. This provision was repealed by section 612 of the Revenue Act of 1928, 45 Stat. 791, 875.
In Alameda Park Co. v. Lucas, 59 App. D.C. 175, 37 F.2d 805, the taxpayer applied for leave to amend his petition prior to the entry of decision by the Board of Tax Appeals. In Weir v. Commissioner, 283 F.2d 675, 683, C.A.6, the taxpayer sought leave in the Tax Court to amend his petition after the conclusion of the hearing but before entry of the decision. Inasmuch as this Court remanded the case to the Tax Court on other grounds, it was ordered that the Tax Court should permit the taxpayer to amend his petition to plead, the statute of limitations.
Counsel for the taxpayer has cited some authority on abuse of discretion of the trial court. We find no abuse of discretion on the part of the trial court in the conduct of the trial in this case.
We conclude that the decision of the Tax Court was correct, in fact and in law, and that since the defense of statute of limitations was not presented in the Tax Court, it cannot now be raised in this Court.
The decision of the Tax Court is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_fedlaw | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
EUGENE ASHE ELECTRIC CO. v. COMMISSIONER OF INTERNAL REVENUE.
No. 11330.
Circuit Court of Appeals, Fifth Circuit.
Feb. 12, 1946.
H. C. Wade, of Fort Worth, Tex., for petitioner.
Harold C. Wilkenfeld, Robert N. Anderson, and Louise Foster, Sp. Assts. to the Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Ro-llin H. Transue, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C, for respondent.
Before McCORD, WALLER, and LEE, Circuit Judges.
McCORD, Circuit Judge.
This appeal involves income and excess profits taxes of the Eugene Ashe Electric Company for the year 1940.
The important facts are these: The taxpayer is a Texas corporation engaged in the electrical contracting business. In 1940 the- corporation’s capital stock consisted of 250 shares, of which the president, Eugene Ashe, owned 190 shares. On March 20, 1940, the directors of the corporation voted to Ashe a salary of $15,000 for the year 1940, and he was paid the sum of $2,600 during that year; the balance of $12,400 was entered as a credit to his personal account on the books of the company. No payment of this balance was made during the two and one-half month period following the close of the year 1940.
A statement of the taxpayer’s account in the First National Bank of Fort Worth, Texas, disclosed a balance of $11,489.70 on February 21, 1941, and a balance of $5,255.70 on March 15, 1941. The taxpayer also had established credit with the bank in the amount of $100,000 during the years 1940 and 1941. Only $25,000 was drawn against this amount prior to January Í, .1941, and no further withdrawals were made during the following two and one-half months.
The balance sheet of the corporation showed a surplus of $25,654.88 as of January 1, 1941, and cash in the bank of $4,267.29.
The taxpayer filed its return o.n the accrual basis, and Ashe filed his return on the cash receipts basis. For the year in question Ashe did not report the $12,400 as income in his original return, but after having the facts called to his attention by a revenue agent and after talking the matter over with his accountant, he filed an amended return on December 27, 1941, in which the additional amount was reported. The evidence is without dispute that Ashe could have drawn checks on the account of the company without the signature of anyone else.
In reaching' its determination that the salary of the president of the corporation was not a deductible business expense, the Tax Court found that the surplus account did not represent the true financial condition of the corporation, since certain hotel bonds were carried on the books at $10,000, whereas such bonds were admittedly worthless in 1935, and it further found that the corporation made it a practice to carry worthless accounts and notes on the books at face value.
The corporation may not escape the penalty of the statute by claiming constructive payment when in fact no payment had been actually made. For the taxpayer to come within the legislative grace granted by the Congress and to claim and secure the deduction, it must bring its case within the terms of the statute as written. Section 24 (c), Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 24 (c) ; Helvering v. Price, 309 U.S. 409, 60 S.Ct. 673, 84 L.Ed. 836; Massachusetts Mutual Life Ins. Co. v. United States, 288 U.S. 269, 270, 275, 53 S.Ct. 337, 77 L.Ed. 739; Eckert v. Burnet, 283 U.S. 140, 141, 51 S.Ct. 373, 75 L.Ed. 911; White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172; Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348; P. G. Lake v. Commissioner, 5 Cir., 148 F.2d 898; Quinn v. Commissioner, 5 Cir., 111 F.2d 372; Hart v. Commissioner, 1 Cir., 54 F.2d 848.
The decision of the Tax Court is Affirmed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
sc_decisiondirection | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
PENSION BENEFIT GUARANTY CORPORATION v. THE LTV CORP. et al.
No. 89-390.
Argued February 27, 1990
Decided June 18, 1990
Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Scalia, and Kennedy, JJ., joined, and in which White and O’Connor, JJ., joined except as to the statement of judgment and n. 11. White, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 656. Stevens, J., filed a dissenting opinion, post, p. 657.
Carol Connor Flowe argued the cause for petitioner. With her on the briefs were James J. Armbruster, Raymond Morgan Forster, Thomas S. Martin, Richard K. Willard, and Charles G. Cole.
Lewis B. Kaden argued the cause for respondents. With him on the brief for respondents The LTV Corporation et al. were Karen E. Wagner, Michael J. Crames, Marc Abrams, and Frank Cummings. Robin E. Phelan and Kathryn C. Malloy filed a brief for respondent Banctexas Dallas, N. A. Joel B. Ziueibel, Geoffrey M. Kalmus, Michael J. Dell, and Peter V. Pantaleo filed a brief for respondent LTV Bank Group. R. A. King and Kenneth R. Bruce filed a brief for respondents David H. Miller et al. Edgar H. Booth, Richard H. Kuh, and Mary S. Zitwer filed a brief for respondent Official Committee of Equity Security Holders. Leonard M. Rosen, Lawrence P. King, Theodore Gewertz, Harold S. Novikoff, Brian M. Cogan, and Mark A. Speiser filed a brief for respondent Official Committee of Unsecured Creditors of LTV Steel Company, Inc. William H. Roberts, Raymond L. Shapiro, Thomas E. Biron, William E. Taylor III, and Ann B. Laupheimer filed a brief for respondent Official Parent Creditors’ Committee of The LTV Corporation.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Deputy Solicitor General Shapiro, and Christopher J. Wright; for the American Society of Pension Actuaries by Chester J. Salkind; for Armco et al. by Benjamin R. Civiletti and W. Warren Hamel; and for the Retired Employees Benefits Coalition, Inc., by Bruce E. Davis.
Briefs of amici curiae urging affirmance were filed for the State of Ohio by Anthony J. Celebrezze, Jr., Attorney General, and Loren L. Braverman; and for the American Federation of Labor and Congress of Industrial Organizations et al. by Robert M. Weinberg, Jeremiah A. Collins, Peter O. Shinevar, Laurence Gold, Bernard Kleiman, Carl B. Frankel, Paul Whitehead, and Karin S. Feldman.
William J. Kilberg and Baruch A. Fellner filed a brief for Wheeling-Pittsburgh Steel Corp. as amicus curiae.
Justice Blackmun
delivered the opinion of the Court.
In this case we must determine whether the decision of the Pension Benefit Guaranty Corporation (PBGC) to restore certain pension plans under § 4047 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 1028, as amended, 100 Stat. 237, 29 U. S. C. § 1347, was, as the Court of Appeals concluded, arbitrary and capricious or contrary to law, within the meaning of the Administrative Procedure Act (APA), 5 U. S. C. § 706.
I
Petitioner PBGC is a wholly owned United States Government corporation, see 29 U. S. C. § 1302, modeled after the Federal Deposit Insurance Corporation. See 120 Cong. Rec. 29950 (1974) (statement of Sen. Bentsen). The Board of Directors of the PBGC consists of the Secretaries of the Treasury, Labor, and Commerce. 29 U. S. C. § 1302(d). The PBGC administers and enforces Title IV of ERISA. Title IV includes a mandatory Government insurance program that protects the pension benefits of over 30 million private-sector American workers who participate in plans covered by the Title. In enacting Title IV, Congress sought to ensure that employees and their beneficiaries would not be completely “deprived of anticipated retirement benefits by the termination of pension plans before sufficient funds have been accumulated in the plans.” Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 720 (1984). See also Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 361-362, 374-375 (1980).
When a plan covered under Title IV terminates with insufficient assets to satisfy its pension obligations to the employees, the PBGC becomes trustee of the plan, taking over the plan’s assets and liabilities. The PBGC then uses the plan’s assets to cover what it can of the benefit obligations. See 29 U. S. C. § 1344 (1982 ed. and Supp. IV). The PBGC then must add its own funds to ensure payment of most of the remaining “nonforfeitable” benefits, i. e., those benefits to which participants have earned entitlement under the plan terms as of the date of termination. §§ 1301(a)(8), 1322(a) and (b). ERISA does place limits on the benefits PBGC may guarantee upon plan termination, however, even if an employee is entitled to greater benefits under the terms of the plan. See 29 CFR § 2621.3(a)(2) and App. A (1989); 29 U. S. C. § 1322(b)(3)(B). In addition, benefit increases resulting from plan amendments adopted within five years of the termination are not paid in full. Finally, active plan participants (current employees) cease to earn additional benefits under the plan upon its termination and lose entitlement to most benefits not yet fully earned as of the date of plan termination. 29 U. S. C. §§ 1322(a) and (b), 1301(a)(8); 29 CFR § 2613.6 (1989).
The cost of the PBGC insurance is borne primarily by employers that maintain ongoing pension plans. Sections 4006 and 4007 of ERISA require these employers to pay annual premiums. See 29 U. S. C. §§ 1306 and 1307 (1982 ed. and Supp. IV). The insurance program is also financed by statutory liability imposed on employers who terminate underfunded pension plans. Upon termination, the employer becomes liable to the PBGC for the benefits that the PBGC will pay out. Because the PBGC historically has recovered only a small portion of that liability, Congress repeatedly has been forced to increase the annual premiums. Even with these increases, the PBGC in its most recent annual report noted liabilities of $4 billion and assets of only $2.4 billion, leaving a deficit of over $1.5 billion.
As noted above, plan termination is the insurable event under Title IV. Plans may be terminated “voluntarily” by an employer or “involuntarily” by the PBGC. An employer may terminate a plan voluntarily in one of two ways. It may proceed with a “standard termination” only if it has sufficient assets to pay all benefit commitments. A standard termination thus does not implicate PBGC insurance responsibilities. If an employer wishes to terminate a plan whose assets are insufficient to pay all benefits, the employer must demonstrate that it is in financial “distress” as defined in 29 U. S. C. § 1341(c) (1982 ed., Supp. IV). Neither a standard nor a distress termination by the employer, however, is permitted if termination would violate the terms of an existing collective-bargaining agreement. 29 U. S. C. § 1341(a)(3).
The PBGC, though, may terminate a plan “involuntarily,” notwithstanding the existence of a collective-bargaining agreement. Ibid. Section 4042 of ERISA provides that the PBGC may terminate a plan whenever it determines that:
“(1) the plan has not met the minimum funding standard required under section 412 of title 26, or has been notified by the Secretary of the Treasury that a notice of deficiency under section 6212 of title 26 has been mailed with respect to the tax imposed under section 4791(a) of title 26,
“(2) the plan will be unable to pay benefits when due,
“(3) the reportable event described in section 1343(b)(7) of this title has occurred, or
“(4) the possible long-run loss of the [PBGC] with respect to the plan may reasonably be expected to increase unreasonably if the plan is not terminated.” 29 U. S. C. § 1342(a).
Termination can be undone by PBGC. Section 4047 of ERISA, 29 U. S. C. § 1347, provides:
“In the case of a plan which has been terminated under section 1341 or 1342 of this title the [PBGC] is authorized in any such case in which [it] determines such action to be appropriate and consistent with its duties under this subchapter, to take such action as may be necessary to restore the plan to its pretermination status, including, but not limited to, the transfer to the employer or a plan administrator of control of part or all of the remaining assets and liabilities of the plan.”
When a plan is restored, full benefits are reinstated, and the employer, rather than the PBGC, again is responsible for the plan’s unfunded liabilities.
II
This case arose after respondent The LTV Corporation (LTV Corp.) and many of its subsidiaries, including LTV Steel Company Inc. (LTV Steel), (collectively LTV), in July 1986 filed petitions for reorganization under Chapter 11 of the Bankruptcy Code. At that time, LTV Steel was the sponsor of three defined benefit pension plans (Plans) covered by Title IV of ERISA. Two of the Plans were the products of collective-bargaining negotiations with the United Steelworkers of America (Steelworkers). The third was for nonunion salaried employees. Chronically underfunded, the Plans, by late 1986, had unfunded liabilities for promised benefits of almost $2.3 billion. Approximately $2.1 billion of this amount was covered by PBGC insurance.
It is undisputed that one of LTV Corp.’s principal goals in filing the Chapter 11 petitions was the restructuring of LTV Steel’s pension obligations, a goal which could be accomplished if the Plans were terminated and responsibility for the unfunded liabilities was placed on the PBGC. LTV Steel then could negotiate with its employees for new pension arrangements. LTV, however, could not voluntarily terminate the Plans because two of them had been negotiated in collective bargaining. LTV therefore sought to have the PBGC terminate the Plans.
To that end, LTV advised the PBGC in 1986 that it could not continue to provide complete funding for the Plans. PBGC estimated that, without continued funding, the Plans’ $2.1 billion underfunding could increase by as much as $65 million by December 1987 and by another $63 million by December 1988, unless the Plans were terminated. Moreover, extensive plant shutdowns were anticipated. These shutdowns, if they occurred before the Plans were terminated, would have required the payment of significant “shutdown benefits.” The PBGC estimated that such benefits could increase the Plans’ liabilities by as much as $300 million to $700 million, of which up to $500 million would be covered by PBGC insurance. Confronted with this information, the PBGC, invoking § 4042(a)(4) of ERISA, 29 U. S. C. § 1342(a)(4), determined that the Plans should be terminated in order to protect the insurance program from the unreasonable risk of large losses, and commenced termination proceedings in the District Court. With LTV’s consent, the Plans were terminated effective January 13, 1987.
Because the Plans’ participants lost some benefits as a result of the termination, the Steelworkers filed an adversary action against LTV in the Bankruptcy Court, challenging the termination and seeking an order directing LTV to make up the lost benefits. This action was settled, with LTV and the Steelworkers negotiating an interim collective-bargaining agreement that included new pension arrangements intended to make up benefits that plan participants lost as a result of the termination. New payments to retirees were based explicitly upon “a percentage of the difference between the benefit that was being paid under the Prior Plans and the amount paid by the PBGC.” App. 181. Retired participants were thereby placed in substantially the same positions they would have occupied had the old Plans never been terminated. The new agreements respecting active participants were also designed to replace benefits under the old Plans that were not insured by the PBGC, such as early retirement benefits and shutdown benefits. With respect to shutdown benefits, LTV stated in Bankruptcy Court that the new benefits totaled “75% of benefits lost as a result of plan termination.” Id., at 159. With respect to some other kinds of benefits for active participants, the new arrangements provided 100% or more of the lost benefits. Id., at 235.
The PBGC objected to these new pension agreements, characterizing them as “follow-on” plans. It defines a follow-on plan as a new benefit arrangement designed to wrap around the insurance benefits provided by the PBGC in such a way as to provide both retirees and active participants substantially the same benefits as they would have received had no termination occurred. The PBGC’s policy against follow-on plans stems from the agency’s belief that such plans are “abusive” of the insurance program and result in the PBGC’s subsidizing an employer’s ongoing pension program in a way not contemplated by Title IV. The PBGC consistently has made clear its policy of using its restoration powers under § 4047 if an employer institutes an abusive follow-on plan. In three opinion letters, two in 1981 and one in 1986, the PBGC stated: “[T]he termination insurance program of Title IV was not intended to subsidize an employer’s ongoing retirement program.” App. to Pet. for Cert. 162a, 167a, 173a. Accordingly, the PBGC has indicated that if an employer adopts a new plan that, “together with the guaranteed benefits paid by the PBGC under the terminated plan, provide[s] for the payment of, accrual of, or eligibility for benefits that are substantially the same as those provided under the terminated plan,” App. 229, the PBGC will view the plan as an attempt to shift liability to the termination insurance program while continuing to operate the plan.
LTV ignored the PBGC’s objections to the new pension arrangements and asked the Bankruptcy Court for permission to fund the follow-on plans. The Bankruptcy Court granted LTV’s request. In doing so, however, it noted that the PBGC “may have legal options or avenues that it can assert administratively . . . to implement its policy goals. Nothing done here tonight precludes the PBGC from pursuing these options. . . .” Id., at 261.
In early August 1987, the PBGC determined that the financial factors on which it had relied in terminating the Plans had changed significantly. Of particular significance to the PBGC was its belief that the steel industry, including LTV Steel, was experiencing a dramatic turnaround. As a result, the PBGC concluded it no longer faced the imminent risk, central to its original termination decision, of large unfunded liabilities stemming from plant shutdowns. Later that month, the PBGC’s internal working group made a recommendation, based upon LTV’s improved financial circumstances and its follow-on plans, to the PBGC’s Executive Director to restore the Plans under the PBGC’s § 4047 powers. After consulting the PBGC’s Board of Directors, which agreed with the working group that restoration was appropriate, the Executive Director decided to restore the Plans.
The Director issued a notice of restoration on September 22, 1987, indicating the PBGC’s intent to restore the terminated Plans. The PBGC notice explained that the restoration decision was based on (1) LTV’s establishment of “a retirement program that results in an abuse of the pension plan termination insurance system established by Title IV of ERISA,” and (2) LTV’s “improved financial circumstances.” See App. to Pet. for Cert. 182a. Restoration meant that the Plans were ongoing, and that LTV again would be responsible for administering and funding them.
LTV refused to comply with the restoration decision. This prompted the PBGC to initiate an enforcement action in the District Court. The court vacated the PBGC’s restoration decision, finding, among other things, that the PBGC had exceeded its authority under § 4047. See In re Chateaugay Corp., 87 B. R. 779 (SDNY 1988).
The Court of Appeals for the Second Circuit affirmed, holding that the PBGC’s restoration decision was “arbitrary and capricious” or contrary to law under the APA, 5 U. S. C. § 706(2)(A), in various ways. 875 F. 2d 1008, 1015-1021 (1989). The court first concluded that the PBGC’s action was arbitrary and capricious because the PBGC focused “inordinately on ERISA” to the exclusion of other laws. Id., at 1016. The court then found the agency’s anti-follow-on policy to be contrary to law because the “legislative history of section 4047 reveals no indication that Congress intended the establishment of successive [i. e., follow-on] benefit plans to be a ground for restoration.” Id., at 1017. The court also found the PBGC’s other basis for restoration—improved financial condition—inadequate because the PBGC did not explain many of its economic assumptions. Id., at 1018-1020. Finally, the court concluded that the agency’s restoration decision was arbitrary and capricious because the PBGC’s decisionmaking process of informal adjudication lacked adequate procedural safeguards. Id., at 1021.
Because of the significant administrative law questions raised by this case, and the importance of the PBGC’s insurance program, we granted certiorari. 493 U. S. 932 (1989).
III
A
The Court of Appeals first held that the restoration decision was arbitrary and capricious under § 706(2)(A) because the PBGC did not take account of all the areas of law the court deemed relevant to the restoration decision. The court expressed the view that “[b]ecause ERISA, bankruptcy and labor law are involved in the case at hand, there must be a showing on the administrative record that PBGC, before reaching its decision, considered all of these areas of the law, and to the extent possible, honored the policies underlying them.” 875 F. 2d, at 1015. The court concluded that the administrative record did not reflect thorough and explicit consideration by the PBGC of the “policies and goals” of each of the three bodies of law. Id., at 1016. As the court put it, the PBGC “focused inordinately on ERISA.” Ibid. The Court of Appeals did not hold that the PBGC’s decision actually conflicted with any provision in the bankruptcy or labor laws, or that the PBGC’s action “trench[ed] upon the . . . jurisdiction” of another agency. See Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 173 (1962). Rather, the court held that because labor law and bankruptcy law are “involved in the case at hand,” the PBGC had an affirmative obligation, which had not been met, to address them. 875 F. 2d, at 1015.
The PBGC contends that the Court of Appeals misapplied the general rule that an agency must take into consideration all relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971), by requiring the agency explicitly to consider and discuss labor and bankruptcy law. We agree.
First, and most important, we do not think that the requirement imposed by the Court of Appeals upon the PBGC can be reconciled with the plain language of § 4047, under which the PBGC is operating in this case. This section gives the PBGC the power to restore terminated plans in any case in which the PBGC determines such action to be “appropriate and consistent with its duties under this title [i. e., Title IV of ERISA]” (emphasis added). The statute does not direct the PBGC to make restoration decisions that further the “public interest” generally, but rather empowers the agency to restore when restoration would further the interests that Title IV of ERISA is designed to protect. Given this specific and unambiguous statutory mandate, we do not think that the PBGC did or could focus “inordinately” on ERISA in making its restoration decision.
Even if Congress’ directive to the PBGC had not been so clear, we are not entirely sure that the Court of Appeals’ holding makes good sense as a general principle of administrative law. The PBGC points out problems that would arise if federal courts routinely were to require each agency to take explicit account of public policies that derive from federal statutes other than the agency’s enabling Act. To begin with, there are numerous federal statutes that could be said to embody countless policies. If agency action may be disturbed whenever a reviewing court is able to point to an arguably relevant statutory policy that was not explicitly considered, then a very large number of agency decisions might be open to judicial invalidation.
The Court of Appeals’ directive that the PBGC give effect to the “policies and goals” of other statutes, apart from what those statutes actually provide, is questionable for another reason as well. Because the PBGC can claim no expertise in the labor and bankruptcy areas, it may be ill equipped to undertake the difficult task of discerning and applying the “policies and goals” of those fields. This Court recently observed:
“[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U. S. 522, 525-526 (1987).
For these reasons, we believe the Court of Appeals erred in holding that the PBGC’s restoration decision was arbitrary and capricious because the agency failed adequately to consider principles and policies of bankruptcy law and labor law.
B
The Court of Appeals also rejected the grounds for restoration that the PBGC did assert and discuss. The court found that the first ground the PBGC proffered to support the restoration—its policy against follow-on plans—was contrary to law because there was no indication in the text of the restoration provision, § 4047, or its legislative history that Congress intended the PBGC to use successive benefit plans as a basis for restoration. The PBGC argues that in reaching this conclusion the Court of Appeals departed from traditional principles of statutory interpretation and judicial review of agency construction of statutes. Again, we must agree.
In Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), we set forth the general principles to be applied when federal courts review an agency’s interpretation of the statute it implements:
“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. ” Id., at 842-843 (footnotes omitted).
Here, the PBGC has interpreted § 4047 as giving it the power to base restoration decisions on the existence of follow-on plans. Our task, then, is to determine whether any clear congressional desire to avoid restoration decisions based on successive pension plans exists, and, if the answer is in the negative, whether the PBGC’s policy is based upon a permissible construction of the statute. See Mead Corp. v. Tilley, 490 U. S. 714 (1989) (applying Chevron principles to the PBGC’s construction of ERISA).
Turning to the first half of the inquiry, we observe that the text of § 4047 does not evince a clear congressional intent to deprive the PBGC of the ability to base restoration decisions on the existence of follow-on plans. To the contrary, the textual grant of authority to the PBGC embodied in this section is broad. As noted above, the section authorizes the PBGC to restore terminated plans “in any such case in which [the PBGC] determines such action to be appropriate and consistent with its duties under [Title IV of ERISA].” 29 U. S. C. § 1347. The PBGC’s duties consist primarily of furthering the statutory purposes of Title IV identified by Congress. These are:
“(1) to encourage the continuation and maintenance of voluntary private pension plans for the benefit of their participants,
“(2) to provide for the timely and uninterrupted payment of pension benefits to participants and beneficiaries under plans to which this subchapter applies, and
“(3) to maintain premiums established by [the PBGC] under section 1306 of this title at the lowest level consistent with carrying out the obligations under this sub-chapter.” 29 U. S. C. § 1302(a).
On their face, of course, none of these statutorily identified purposes has anything to say about the precise question at issue—the use of follow-on plans as a basis for restoration decisions.
Nor do any of the other traditional tools of statutory construction compel the conclusion that Congress intended that the PBGC not base its restoration decisions on follow-on plans. The Court of Appeals relied extensively on passages in the legislative history of the 1974 enactment of ERISA which suggest that Congress considered financial recovery a valid basis for restoration, but which make no mention of follow-on plans. The court reasoned that because follow-ons were not among the bases for restoration discussed by Members of Congress, that body must have intended that the existence of follow-ons not be a reason for restoring pension plans. See 875 F. 2d, at 1017.
We do not agree with this conclusion. We first note that the discussion in the legislative history concerning grounds for restoration was not limited to the financial-recovery example. The House Conference Report indicated that restoration was appropriate if financial recovery or “some other factor made termination no longer advisable.” H. R. Conf. Rep. No. 93-1280, p. 378 (1974). Moreover, and more generally, the language of a statute—particularly language expressly granting an agency broad authority—is not to be regarded as modified by examples set forth in the legislative history. An example, after all, is just that: an illustration of a statute’s operation in practice. It is not, as the Court of Appeals apparently thought, a definitive interpretation of a statute’s scope. We see no suggestion in the legislative history that Congress intended its list of examples to be exhaustive. Under these circumstances, we conclude that ERISA’s legislative history does not suggest “clear congressional intent” on the question of follow-on plans.
The Court of Appeals also relied on the legislative history of the 1987 amendments to ERISA effected by the Pension Protection Act, Pub. L. 100-203, 101 Stat. 1330-333. See 875 F. 2d, at 1017. This history reveals that Congress in 1987 considered, but did not enact, a provision that expressly would have authorized the PBGC to prohibit follow-on plans. But subsequent legislative history is a “hazardous basis for inferring the intent of an earlier” Congress. United States v. Price, 361 U. S. 304, 313 (1960). It is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns, as it does here, a proposal that does not become law. See, e. g., United States v. Wise, 370 U. S. 405, 411 (1962). Congressional inaction lacks “persuasive significance” because “several equally tenable inferences” may be drawn from such inaction, “including the inference that the existing legislation already incorporated the offered change.” Ibid. These admonitions are especially apt in the instant case because Congress was aware of the action taken by the PBGC with respect to LTV at the time it rejected the proposed amendment. See H. R. Rep. No. 100-391, pt. 1, pp. 106-107 (1987). Despite Congress’ awareness of the PBGC’s belief that the adoption of follow-on plans was a ground for restoration, Congress did not amend § 4047 to restrict the PBGC’s discretion. The conclusion that Congress thought the PBGC was properly exercising its authority is at least as plausible as any other. Thus, the legislative history surrounding the 1987 amendments provides no more support than the 1974 legislative history for the Court of Appeals’ holding that the PBGC’s interpretation of § 4047 contravened clear congressional will.
Having determined that the PBGC’s construction is not contrary to clear congressional intent, we still must ascertain whether the agency’s policy is based upon a “permissible” construction of the statute, that is, a construction that is “rational and consistent with the statute.” NLRB v. Food & Commercial Workers, 484 U. S. 112, 123 (1987); see also Sullivan v. Everhart, 494 U. S. 83 (1990). Respondents argue that the PBGC’s anti-follow-on policy is irrational because, as a practical matter, no purpose is served when the PBGC bases a restoration decision on something other than the improved financial health of the employer. According to respondents, “financial improvement [is] both a necessary and a sufficient condition for restoration. The agency’s asserted abuse policy . . . is logically irrelevant to the restoration decision.” Brief for Respondents LTV Corp. and LTV Steel 33 (emphasis added). We think not. The PBGC’s anti-follow-on policy is premised on the belief, which we find eminently reasonable, that employees will object more strenuously to a company’s original decision to terminate a plan (or to take financial steps that make termination likely) if the company cannot use a follow-on plan to put the employees in the same (or a similar) position after termination as they were in before. The availability of a follow-on plan thus would remove a significant check—employee resistance—against termination of a pension plan.
Consequently, follow-on plans may tend to frustrate one of the objectives of ERISA that the PBGC is supposed to accomplish—the “continuation and maintenance of voluntary private pension plans.” 29 U. S. C. § 1302(a)(1). In addition, follow-on plans have a tendency to increase the PBGC’s deficit and increase the insurance premiums all employers must pay, thereby frustrating another related statutory objective—the maintenance of low premiums. See 29 U. S. C. § 1302(a)(3). In short, the PBGC’s construction based upon its conclusion that the existence of follow-on plans will lead to more plan terminations and increased PBGC liabilities is “assuredly a permissible one.” Everhart, 494 U. S., at 93. Indeed, the judgments about the way the real world works that have gone into the PBGC’s anti-follow-on policy are precisely the kind that agencies are better equipped to make than are courts. This practical agency expertise is one of the principal justifications behind Chevron deference. See 467 U. S., at 865.
None of this is to say that financial improvement will never be relevant to a restoration decision. Indeed, if an employer’s financial situation remains so dire that restoration would lead inevitably to immediate retermination, the PBGC may decide not to restore a terminated plan even where the employer has instituted a follow-on plan. For present purposes, however, it is enough for us to decide that where, as here, there is no suggestion that immediate retermination of the plans will be necessary, it is rational for the PBGC to disfavor follow-
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
songer_geniss | C | 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".
DIESEL TANKER F. A. VERDON, INC., as owner of the tank vessel F. A. Verdon, Libellant-Appellant, v. STAKEBOAT NO. 2 and Bronx Towing Line, Inc., Claimant-Respondent-Appellee. BRONX TOWING LINE, INC., as owner of the Stakeboat No. 2, Libellant-Appellee, v. TANK VESSEL F. A. VERDON and Diesel Tanker P. A. Verdon, Inc., Claimant-Respondent-Appellant.
No. 220, Docket 28549.
United States Court of Appeals Second Circuit.
Argued Dec. 4, 1964.
Decided Jan. 19, 1965.
Stephen J. Buck ley, New York City (Christopher E. Heckman, Foley & Martin, New Yoxit City, on the brief), for appellant.
Herbert B. Halberg, New York City (Maurice A. Krisel and Krisel & Beck, New York City, on the brief), for appellee.
Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.
Sitting by designation.
BLUMENFELD, District Judge:
These two appeals briefed and argued together present a problem of applying the same principles of admiralty law to opposing sides of the same controversy. The owners of two ships each brought a libel against the other and the two actions wex'e consolidated for trial below. The owners of the tanker F. A. Verdón and the Stakeboat No. 2 each contended that the other’s vessel was solely responsible for a collision which occurred in Red Hook Flats, New York Harbor, during the night of June 15, 1960.
The District Judge concluded that the collision was caused by negligent operation of the Verdón. He was unable to determine whether or not the Stake-boat No. 2 was unlighted, as the Verdón claimed. He dismissed the Verdon’s libel and awarded Stakeboat No. 2 full damages against her. We affirm the dismissal of the Verdon’s libel and the conclusion that she was at fault and thus liable to Stakeboat No. 2, but disagree with the allowance of full damages to the latter.
The significant facts as found by the court below are not complicated. A collision took place in a Fedex-al Anchorage in Red Hook Flats between anchored Stakeboat No. 2 and the tanker F. A. Verdón on the night of June 15, 1960. The collision occurred at 11:35 p. m. At that time, no one was aboard the stakeboat.
Visibility was limited by haze, intermittent fog and smoke; but navigation and shore lights, a mile and a half away, could readily be seen. The Verdon’s captain and the deck hand, an able seaman, were in the wheelhouse. About 3 or 4 minutes before the collision, the wheel had been turned over to the deck hand with orders to hold the ship “steady as she goes.” Meanwhile, the captain was watching for traffic in the main ship channel, off his port side. There was no lookout on the tanker’s bow. The Verdón is a tank vessel 204.5 feet long with her wheelhouse located approximately 180 feet back from her bow. The Verdón was in a light condition and proceeding at a full speed of 8 to 9 knots, well in excess of the permissible speed of 6 knots. This raised the bow higher above the surface of the water than the stem and produced a “blind area” for 30 or 40 yards ahead of the bow for one in the wheelhouse. The radar was on, but the captain did not look at it. The stake-boat, 92 feet in length and constructed of steel, would have made a good radar target. Neither the captain nor the deck hand saw the stakeboat until after the collision.
One of the strongly contested factual issues was whether the stakeboat carried forward a white light visible all around the horizon at the distance of at least one mile as she was required to do. 33 U.S.C. § 180. After a careful consideration of conflicting oral testimony in which credibility was, in some measure, a factor for the trier to weigh, and of circumstantial evidence from which the reasonableness of inferences to be drawn were also within the power of the trial judge to resolve, he found, “I cannot affirmatively find that, on the night of the collision, the white light was burning.” On the other hand, he stated, “I am not persuaded that the white light was not burning.” To leave no room for doubt as to what he found on this issue, he continued, “I freely confess my inability to make a definite finding one way, or the other.”
When the owner of the Verdón brought its case into court it assumed the affirmative. With respect to the factual issue of whether the stake-boat was lighted, the burden of proof rested upon it. The general principle was stated in Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 112, 113, 62 S.Ct. 156, 161, 162, 86 L.Ed. 89 (1941): “Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of facts is unable to resolve * * * ‘If the determination of this question is left in doubt, that doubt must be resolved against’ the shipowner.” Since the Verdón did not carry the burden of establishing fault on the part of the stakeboat, her libel was properly dismissed. “Where the fault is wholly on one side, the party in fault must bear his own loss, and compensate the other party, if such party have sustained any damage.” The Clara, 102 U.S. 200, 202, 26 L.Ed. 145 (1880).
A somewhat more troublesome question is presented on the appeal from the judgment awarding full damages to the owner of the stakeboat. The court’s conclusions and findings that the tanker was grossly at fault in proceeding through the anchorage in excess of the speed limit with no lookout forward and no one paying any attention to the radar were amply supported.
But its fault alone was not sufficient to support the award of full damages to the stakeboat. “In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant.” The Clara, supra, 102 U.S. at 203. Bruce v. Debuse Barras Co., 169 F.Supp. 90, 92 (E.D. La.1958).
Although the negligent navigation of the Verdón was clearly established, Stakeboat No. 2 did not affirmatively satisfy its burden of persuading the trier that it was lighted. Article 11 of the Inland Rules of the Road, 33 U.S.C. § 180, in force at the time of the collision, reads in part as follows;
“A vessel under one hundred and fifty feet in length when at anchor shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile:”
Despite the stakeboat’s failure to prove its compliance with the duty to display a light, the opinion below, after holding that there was no excuse for the Verdon’s faults, continued: “In comparison with them, the sin of the stakeboat, if any, was venial, and should be condoned [cited eases omitted]. Consequently, I conclude that the collision was caused solely through the faults of the Verdón, * * ”
Although findings of fact in suits in admiralty must be accepted unless they are “clearly erroneous,” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954) ; Cunningham v. Rederiet Vindeggen A/S, 333 F.2d 308, 312 (2d Cir. 1964), we are not so limited as to erroneous views of the law. To the extent that conclusions may have been reached by the application of an erroneous rule of law to the facts found, they are open to full review. Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72, 75-76 (2d Cir. 1963). Cf. American Technical Mach. Corp. v. Caparotta, 339 F.2d 557 (2d Cir. 1964).
Even in the absence of any regulations, under established principles of admiralty law, the risks to other vessels created by a vessel lying at anchor at night without lights, even though in a permissible place, can hardly be regarded as trivial. The creation of undue risks of injury is negligence. The James Gray, 62 U.S. (21 How.) 184, 189, 16 L.Ed. 106 (1859). And, where the duty is imposed by statute, 33 U.S.C. § 180, compliance has been held to be imperative. American Dredging Co. v. Calmar S.S. Corp., 121 F.Supp. 255 (E.D.Pa.1954), aff’d per curiam, 218 F.2d 823 (3d Cir. 1955), held that the dredging company was under an absolute obligation to have proper anchor lights upon its anchored mudscows. And see Bruce v. Debuse Barras Co., supra, 169 F.Supp. 90, cases at 92, n. 8. As pointed out by Judge Learned Hand in Merritt-Chapman & Scott Corp. v. Cornell S.S. Co., 265 F.2d 537, 539 (2d Cir. 1959), “a different rule applies to the breach of a statutory duty from the breach of an ordinary duty. The doctrine of The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148, is that when the fault consists in the breach of a ‘statutory rule intended to prevent collisions * * * the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it px'obably was not, but that it could not have been.’ ” It was held in Tide Water Associated Oil Co. v. The Syosset, 203 F.2d 264 (3d Cir. 1953), that there is no room for application of the major-minor fault rule where there is a violation of a statutory requirement intended to avoid collisions for the reasons given at pages 268-269, and more thoroxxghly explained by Judge Friendly in In re Kinsman Transit Co., 338 F.2d 708, 720 (2d Cir. 1964), where he revealed the court’s awareness of the view held by some that
“results of the equal division principle which are sometimes quite as shocking as those of the common law bar for contributory negligence— especially in cases where x*eliance by a relatively innocent plaintiff on the ‘major-minor fault’ exception has been thought to be barred by the rule of The Pennsylvania, 19 Wall. (86 U.S.) 125 [22 L.Ed. 148] (1874), that a party to a collision who has violated a statutory rule of navigation may not escape liability except on proof that the violation could not have contributed to the accident. See MacIntyre, supra [The Rationale of Last Clear Chance] 53 Harv.L. Rev. at 1236-41; Gilmore & Black, Admiralty, 403-407, 438-442.”
Nevertheless, we have unequivocally adhered to the doctrine of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874). Topor-Taparek v. Socony Mobil Oil Co., 339 F.2d 792 (2d Cir. Dec. 29, 1964).
Thus, where the breach of duty is statutory, it is the impossibility that it may have been one of the causes of the collision, not the forgivability of one which did, that affords relief fx*om liability for that violation. No tour de force can transmute the minor fault among varying degrees of negligence into the non-existence of proximate cause. See In re Kinsman Transit Co., supra. The crucial omission in the stakeboat’s libel is the absence of a finding that its violation “could not have contributed to the accident.” Having found that Stake-boat No. 2 did not meet its burden of proving that it was lighted as required by the statute, under the rule administered in American admiralty the trial court ■should have required her to bear half her loss.
The decree must, therefore, be reversed, and the case remitted to the court below for the purpose of carrying this .division into effect.
. This section has been amended as of August 5,1963, Pub.L. 83-84 § 1, 77 Stat. 116.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
sc_authoritydecision | C | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
EPTON v. NEW YORK.
No. 502,
Misc.
Decided January 22, 1968
Eleanor Jackson Piel for petitioner in No. 502, Mise., and for appellant in No. 771, Mise.
Frank S. Hogan, H. Richard Uviller and Michael Juviler for respondent in No. 502, Mise., and for appellee in No. 771, Mise.
Together with No. 771, Misc., Epton v. New York, on appeal from the same court.
Per Curiam.
The petition for a writ of certiorari is denied in No. 502, Mise. The motion to dismiss is granted in No. 771, Mise., and the appeal is dismissed for want of a substantial federal question.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer: |
songer_genstand | 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 agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
J. W. JENKINS SONS’ MUSIC COMPANY v. Nona MATHEW.
No. 396.
Circuit Court of Appeals, Tenth Circuit.
Jan. 13, 1931.
Vermilion, Evans, Carey & Lilleston, of Wichita, Kan., for appellant.
Payne H. Ratner, of Parsons, Kan., Harold Medill, of Independence, Kan., and A. M. Etchen, of Kansas City, Kan., for appellee.
Before LEWIS and MeDERMOTT, Circuit Judges, and KENNEDY, District Judge.
PER CURIAM.
Appeal dismissed January 13, 1931, per stipulation, at costs of appellant.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_r_fed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. James D. REYNOLDS, Defendant-Appellant.
No. 85-1621.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 21, 1986.
Decided Sept. 18, 1986.
John M. Cutrone, Chicago, Ill., for defendant-appellant.
L. Lee Smith, Asst. U.S. Atty., Peoria, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, BAUER and CUDAHY, Circuit Judges.
CUMMINGS, Chief Judge.
James Reynolds challenges his convictions of conspiracy to import and distribute marijuana and of interstate travel in support of racketeering. He raises issues of sufficiency of the evidence, prosecutorial misconduct, and sentencing proceeding irregularities. For the reasons discussed below, we affirm the convictions but vacate the sentence imposed and remand for new sentencing in compliance with Federal Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure.
Statement of the Case and Facts
James Reynolds, defendant, was convicted by a jury of conspiracy to import and distribute more than 1,000 pounds of marijuana in violation of 21 U.S.C. §§ 846 and 955c. He was also convicted of interstate travel in aid of racketeering, a violation of 18 U.S.C. § 1952(a)(3). Defendant was sentenced to one 8-year term and two 5-year terms on the three counts, the sentences to be served concurrently.
In May 1984, Donald Harms was contacted by his uncle, John Ferrarini, about renting and piloting an airplane. Harms became suspicious of his uncle’s plans for the plane and contacted the Federal Bureau of Investigation (FBI). Harms agreed to help investigate his uncle by recording conversations. Some fourteen phone calls between Harms and Ferrarini were recorded during the first week of June. These conversations centered on the type of aircraft needed and the job Harms was to do. Fer-rarini cautioned his nephew about speaking too openly over the telephone. In a telephone conversation on June 7, 1984, the defendant, James Reynolds, spoke with Harms; the conversation involved the type of airplane and its capacity to carry cargo. A meeting was planned for the next day at a restaurant in Princeton, Illinois.
Present at the June 8th meeting were Harms, Ferrarini, Reynolds, and Frank Gato, Reynolds’ business partner. Harms wore a recorder during the meeting. Transcripts of the conversation were introduced at trial. During this meeting the group discussed the range of the chosen aircraft, a Piper Navajo, and how much weight it could carry. Harms attempted to get the others to disclose the specifics of the plan. Harms was informed that he would be transporting marijuana. Reynolds told Harms that the plan was for the two of them to fly the marijuana from Colombia to Bimini in the Bahamas. Up to this point Harms had had no idea what their cargo would be; he had thought it was to be cocaine. The conversation turned to the aircraft and the potential profitability of the trip. Reynolds expressed concern over the ability to carry a large quantity of cargo over the necessary distance. Harms was told that the longest leg of the flight would be 1,200 miles.
At one point in the conversation, Reynolds and Ferrarini left the table. While they were absent, Harms continued to question Gato about the ultimate destination for the marijuana. Gato responded that the plan was to bring it into the United States by boat from Bimini on the same day. Eventually Harms left to meet with the FBI. Reynolds, Gato, and Ferrarini were arrested as they left the restaurant.
The defendant raises three issues on appeal. First, whether there was sufficient evidence to show that (a) he knew the marijuana was to be imported into the United States and (b) the group was planning to carry more than 1,000 pounds of marijuana. The second issue is whether statements concerning the judge’s responsibility to decide issues of probable cause constituted prosecutorial misconduct. The third issue is whether the judge should have ruled on defendant’s proposed corrections in the presentence report before sentencing. We affirm the convictions but remand for proper sentencing.
I. SUFFICIENCY OF THE EVIDENCE
A. Importation into the United States.
The defendant concedes that he was part of a scheme to transport marijuana out of Colombia. But he contends that the evidence fails to establish that he agreed to bring the marijuana into the United States. The government maintains that sufficient evidence was presented to the jury for them to infer his- knowledge of the ultimate destination. We agree that the jury had enough evidence to conclude that Reynolds was part of the scheme to import marijuana into the United States so that the convictions on all three counts were sustainable from an evidentiary viewpoint.
This Court employs the traditional reasonableness test when reviewing claims of insufficiency of the evidence. This Court must review the evidence in a light most favorable to the government to determine whether “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) (emphasis in the original); United States v. Wiehoff, 748 F.2d 1158, 1160-1161 (7th Cir.1984).
Conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 846 and 955c requires an agreement to distribute the contraband within the United States. United States v. Hayes, 653 F.2d 8 (1st Cir.1981). The existence of an agreement may be proven by circumstantial evidence based upon the conduct of the parties or substantial evidence of the entire scenario. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (“a common purpose and plan may be inferred from a development and collocation of circumstances”). Even without personal communication, tacit understanding of the usual business arrangements through a long course of conduct between the parties is enough to constitute an agreement. United States v. Consolidated Packaging Corp., 575 F.2d 117, 126 (7th Cir.1978).
Reynolds claims that the tape-recorded conversations actually support his position that he was not aware that the marijuana would be shipped into the United States. Reynolds points to his discussion with Harms when he said:
Reynolds: Here’s what it is. Uh ... we got a load of smoke ...
Harms: Oh.
Reynolds: In Colombia, and a, and you’re ...
Harms: Jesus Christ, you’re not gonna bring back much grass.
Reynolds: No, listen to this, we’re not bringing it back in the country.
Gato: Not to the country.
Reynolds: You’re not gonna bring anything to this country and risk that.
Harms: Oh.
Reynolds: That’s not what it is. You and I ...
Harms: Yeah.
Reynolds: I’m gonna be with you, you are going to Colombia.
Harms: Uh-huh.
Reynolds: We’re going to go from Colombia, back to Bimini.
Gato: It’s an island.
Harms: Yeah, I know where Bimini is.
Reynolds: Unload it, clean the plane, the plane will be cleaned there, and then we’ll come home.
After Harms restates the proposed plan as flying to Colombia, picking up marijuana, and then flying to Bimini, Reynolds responds:
Reynolds: Yeah.
Harms: That’s all there is.
Gato: That’s all there is.
Reynolds: That’s it, that’s all.
From this conversation Reynolds insists that the jury could not have concluded that he knew that the marijuana would be brought into the United States. Instead, Reynolds argues, these portions demonstrate that his understanding is that the marijuana was only going from Colombia to Bimini so that none of the three statutes was violated.
But the jury had other evidence to consider. The transcript given to the jury reflects that immediately after Reynolds’ last statement above, Gato said to Harms, “Your job is to Bimini, then we transport it (emphasis supplied).” The defendant challenges the interpretation of the phrase “then we transport it,” but the accuracy of the government’s version of the tape-recorded conversations was a question of fact for the jury. Furthermore, Gato later disclosed to Harms the details of the importation plan:
Harms: How far is Bimini from Miami?
Gato: Bimini is exactly forty-eight miles.
Harms: Forty-eight?
Gato: Yeah.
Harms: Hum.
Gato: Only twenty minutes flight ... from Miami.
Harms: Nothing to it.
Gato: It’s real close.
Harms: What they do, boat her in then?
Gato: [unintelligible]
Harms: I don’t give a shit, they boat her back in?
Gato: Yeah.
Harms: That’s all them bales floatin’ around those beaches you hear about.
Gato: We’ll bring it in by boat and ...
Harms: Bring her in by boat.
Gato: By boat, same night, same day.
Harms: Same time.
These details resolve any ambiguities in Gato’s phrase “then we transport it.” Although this discussion took place while Reynolds was away from the table, the jury was aware of the close and long-standing working relationship between Gato and Reynolds. In fact, for the jury to have concluded that Gato would keep his longstanding partner in the dark about the final destination, yet reveal it so freely to an outsider hired only to fly the goods, would be preposterous.
B. 1,000 Pounds
The defendant next contends that the evidence was insufficient to support a conviction for a conspiracy to distribute more than 1,000 pounds of marijuana. Under 21 U.S.C. §§ 846 and 841(b)(5) and (c), conspiracy to distribute an amount less than 1,000 pounds of marijuana carries a maximum sentence of 5 years; for more than 1,000 pounds the penalty is up to 15 years. Again, in this conspiracy case to sustain the eight-year sentence under Count I the government must prove that Reynolds and his cohort had an agreement to distribute in excess of 1,000 pounds. See United States v. Butz, 784 F.2d 239, 240 (7th Cir.1986). Because there was no direct evidence of the amount of marijuana the defendants conspired to transport, the government attempted to prove the amount indirectly. See United States v. Silva, 781 F.2d 106 (7th Cir.1986) (direct evidence rarely available in conspiracy cases). Experts were called on both sides to speculate as to the feasibility of the chosen Navajo aircraft to carry 1,000-plus pounds of cargo, two persons, sufficient fuel, oil, etc.
The government’s expert testified to the following calculations based on a 1,000-mile range:
2250 lbs useful load.
(1152) fuel
( 45) oil
( 410) pilot and passenger
643 lbs cargo availability
325 5% over gross weight
968 lbs total cargo capacity
The traveling distance with cargo (from Colombia to Bimini) is not in evidence. The only range testimony is that the longest leg of the journey would be from the United States to Colombia (1200) miles and the way back (Colombia to Bimini) was less. The jury could reason that if the journey was feasible with 968 pounds cargo, a shorter journey (Colombia to Bimini) with more cargo was within the realm of possibility. Moreover, the nature of the discussions between Harms and the conspirators showed that they were very much interested in carrying as much marijuana as possible.
The government buttresses its argument with evidence that the conspirators planned at least three marijuana trips. The defense concedes that Reynolds indicated a willingness to engage in future trips, but argues no agreement to do so was ever reached. During the June 8th meeting the defendant stated:
Reynolds: Your job is to fly a fucking airplane and get you and me down there in one piece, and get us back with the goods. That’s it and if you can spare the time ...
Harms: Yeh.
Reynolds: ... Wait a couple of days and we’ll do a turnaround and do it again. Then we all lay down for a couple weeks and then we’ll do it again. (Govt. Ex. 5, p. 16).
From these statements and the evidence of the continuous business relationship between Gato and Reynolds the jury was entitled to infer that they agreed to make numerous trips. The government does not have to prove that the conspirators had an express agreement: “circumstantial evidence from which the jury could reasonably infer the existence of an agreement is permissible.” United States v. Mayo, 721 F.2d 1084, 1088 (7th Cir.1983).
Because the first trip would bring at least close to 1,000 pounds of marijuana to the United States, by the third trip the conspiracy would have easily passed the I,000 pound mark. The combination of direct and circumstantial evidence permitted the jury to conclude that the conspiracy was created to import marijuana into the United States and that it would ultimately involve more than 1,000 pounds.
II. PROSECUTORIAL MISCONDUCT
Defendant contends that a portion of the prosecutor’s closing argument unfairly prejudiced him by giving the jury the impression that the judge thought the defendant was guilty. The government has responded by asserting that the argument was “invited” by the defendant. The defendant raises two distinct legal issues here: whether the prosecutor’s behavior was error, and if so, whether it is reversible error. The “invited response” doctrine is relevant only to the latter issue. United States v. Pollard, 790 F.2d 1309 (7th Cir.1986). The invited response doctrine does not give prosecutors a license to make improper arguments; it only puts such arguments in context. Darden v. Wainwright, — U.S. -, -, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986); United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1044-1045. Once placed in context a reviewing court must decide if the defendant was unfairly prejudiced. Darden, — U.S. at -, 106 S.Ct. at 2472; United States v. Wheeler, 800 F.2d 100, 106-07 (7th Cir.1986).
During closing rebuttal argument the prosecutor said:
But there are a lot of non issues in this case.... Those deal with issues about whether or not these defendants should have been arrested, whether or not the Bureau County [sic ] should charge these defendants and whether or not the United States should be allowed to charge these defendants.
I stated in my opening, ladies and gentlemen, that the judge has a job and that you have a job, and the judge’s job is to determine the law, and the judge’s job is to determine whether or not these people should be arrested and whether or not it is permissible to bring these charges against these defendants. [R. Dec. 11, 1984, p. 227]
The trial judge denied defendant’s immediate motion for a mistrial but gave the following cautionary instruction:
Ladies and gentlemen, the recent arguments of [the prosecutor] concerning what are the legal issues in this case is not an accurate statement of the law. The legal issues of this case will be stated to you by me in my instructions of law.
The prosecutor’s reference to the judge’s role in deciding whether it is permissible to arrest and bring charges against the defendants was of course error but did not tell the jury that the judge had decided that defendants were guilty. While the defense counsel had attacked the accuracy of law enforcement witnesses’ reports, affidavits and Grand Jury testimony, primarily for impeachment purposes, the above remarks cannot really be considered an invited response. Nevertheless, they were not really prejudicial, as Judge Mihm recognized (Vol. IV Tr. 229). In any event, their effect, if any, was immediately blunted by the cautionary instruction given by the judge. Therefore the error was not reversible. See Wheeler, at 107.
III. SENTENCING
The defendant contends that the district court failed to abide by Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure and the mandates of United States v. Rone, 743 F.2d 1169 (7th Cir.1984). At the sentencing hearing the judge asked defendant and his counsel if they had read the presentence report and whether they had any objections to it. The defense counsel responded that Reynolds had prepared a list of inaccuracies. Only four were mentioned by the defense counsel, namely, dispute over the government’s claims that: (1) the shipment was going to Reynolds’ marina business; (2) there was in excess of 1,000 pounds of marijuana; (3) Reynolds’ marina business had failed prior to his arrest; and (4) he used a communication device in furtherance of the conspiracy. Defense counsel downplayed the remainder of •.Reynolds’ listed items and they were not specifically referred to. The defendant also was asked by the judge if he had any problems with the presentence report. He responded, “I’m in agreement with my attorney as to the itemized list that I made out while in Tazewell County Jail.”
The sentencing judge explicitly agreed with defense counsel that a count containing a communication device charge had been dropped and thus was improperly included in the presentence report. As to the other alleged inaccuracies the court simply made a general statement that the government was entitled to present its version of the facts. This statement was made after recitation of the first of the above claimed errors in the report but before the other three. The judge told defense counsel to prepare a memorandum of the defendant’s complaints and attach it to the presentence report. He then proceeded to sentence the defendant. Under United States v. Rone, 743 F.2d 1169 (7th Cir.1984) and United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), this procedure did not fulfill the requirements of Rule 32(c)(3)(D).
Federal Rule of Criminal Procedure 32(c)(3)(D) provides that when a defendant alleges inaccuracies in the presentence report, the sentencing court must make written findings as to the allegations or a written determination that the disputed matters will not be relied on for sentencing. The rule also requires that the findings or determination be attached to the presentence report. Eschweiler, 782 F.2d at 1387. The purpose of the Rule is both to protect the defendant’s due process right to a fair sentencing procedure and to provide a clear record of the disposition of controverted facts in the presentence report. Id.; Fed. R.Crim.P. 32 Advisory Committee Notes. On this record it is far from clear whether the sentencing judge made findings with respect to the enumerated alleged inaccuracies, not to mention the rest of the list, the content of which was never orally brought to the court’s attention. Nor did the court state that it would not rely on the disputed facts for sentencing.
Unlike Eschweiler, the court did not clearly impose the sentence on grounds other than those questioned by the defendant. See 782 F.2d at 1390. Although the court did give a general statement of its reasons for imposing the particular sentence on the defendant, it is unclear whether and to what degree the contested information may have played a part in the decision. Moreover, the court was aware of claimed inaccuracies that were never orally delineated. Since it is unclear whether the judge relied on information contested by the defendant, it is necessary to remand for resentencing in compliance with Rule 32(c)(3)(D). See id. at 1390 & n. 11.
Additionally, allowing the defendant to attach a memorandum outlining his grievances does not meet the Rule’s requirements that the court attach a written determination of its findings or determination to the presentence report. First, the court has not made any findings under this approach. The Rule imposes an obligation on the court, not the defendant, to deal with and respond to presentence report complaints before sentencing a defendant. Second, the purpose of providing prison and parole authorities with a clear record of how disputes were resolved is not met by simply having the defendant list his grievances and attaching them to the pre-sentence report.
The government also argues that we may not rely on the defendant’s factual inaccuracies to vacate his sentence because they are not in the record. The government misconstrues the defendant’s argument and our response. The remand for resentencing is not because the facts therein were inaccurate. The remand is necessary because the sentencing court is required under Rule 32(c)(3)(D) to make a finding one way or the other. Because the record is unclear, a remand is essential. See Eschweiler, 782 F.2d at 1390 & n. 11.
For the reasons discussed above the defendant’s convictions are affirmed but we remand the cause for resentencing in compliance with Rule 32(c)(3)(D).
. Reynolds summarized their relationship well by saying on tape, "Frank [Gato] and I live and breathe this shit all the time.”
. Useful load is the gross weight a particular aircraft is capable of flying minus the weight of the aircraft itself.
.The expert testified that the Navajo could conceivably fly at 5% above gross weight.
. It is not necessary that the conspirators could have been successful in completing their crime. In other words, if the conspirators planned to fly 1,500 miles with 1,500 pounds of marijuana into the United States, but would surely have crashed, they could still be guilty of conspiracy to distribute in excess of 1,000 pounds of marijuana. United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981), certiorari denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982); United States v. Oviedo, 525 F.2d 881 (5th Cir.1976).
. The Government also argues that the defendant merely complains of its version of the facts. Because it is entitled to include those in the presentence report, the Government submits there was no error. Unfortunately, neither we nor the sentencing court are aware of all the defendant’s complaints about the contents of the presentence report since some of them were not specifically addressed. And it is not clear whether the disputed facts were merely disagreements with the government’s version of the evidence adduced at trial, e.g., whether the defendant’s business failed before or after his arrest.
The Government also argues that it was the defense counsel who failed to inform adequately the sentencing judge of the alleged inaccuracies and who downplayed their significance. However, at the sentencing hearing the defendant reasserted his complaints, referring to the list he made while in jail. Furthermore, under Rule 32(c)(3)(D) it is the judge who has the duty to resolve any claimed inaccuracy brought to his or her attention.
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_natpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MICHAEL, v. UNITED STATES.
Circuit Court of Appeals, Seventh Circuit.
June 6, 1925.
Rehearing Denied September 28, 1925.
No. 3415.
1. Criminal law <3=31134(3) — Conviction for presenting fraudulent claims for damages to interstate shipments sustainable, where shown defendant was consignee named in biil of lading as to one or more of several charges in indictment.
In a prosecution for presenting false and fraudulent claims tor damages sustained in interstate shipment of coal, where indictment was on several counts, conviction sustainable, where defendant was shown to be consignee named in bill of lading as to one or more of charges, and whether or not he was consignee, within meaning of Interstate Commerce Act, § 10, par. 3 (Comp. St. § 8574), as to other charges, need not be determined.
2. Commerce <3=»33 — Act to regulate commerce applicable to shipment from one point to another in state via another state; “interstate commerce.”
Where freight passed from Southern Illinois into Indiana and back to Illinois, it was “interstate commerce,” and act to regulate commerce was applicable.
[Ed. Note. — -For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
3. Criminal law <3=»l 166(2) — 'Testimony as to price of coal by bookkeeper not prejudicial, in a prosecution for presenting false ©¡aims. '
in a prosecution for presenting false claims for damages in shipping coal, evidence by bookkeeper of coal company as to price of coal was not prejudicial; amount of claim being unimportant, and actual purchase price of coal being conclusively established, in view of other testimony.
4. Criminal law <3=31122(5) — ’Whether accused prejudiced by charge can oniy he ascertained by examination of entire charge.
Whether accused is prejudiced by any particular language in charge of court can only be ascertained by an -examination of entire charge, and, where bill of exceptions did not contain all instructions given, appellate court is unable to say whether or not defendant was prejudiced.
5. Criminal law <3=3787(1) — Accused entitled to statement that his failure to testify is hot to he construed against him.
Accused, declining to take witness stand, entitled to statement from court that his failure to testify is not to be construed against Mm.
6. Criminal law <3c=>787(2) — Instruction that failure of accused to testify did not in any way disregard or impair effect of uncontradicted facts not error.
Where court gave requested charge that failure of accused to testify should not be construed against him, but further instructed that such failure to testify did not impair effect of uncontradicted facts, such instruction was not erroneous.
7. Criminal law <3=31134(3) — Where conviction on one act free from error, and sentence sustainable thereunder, sufficiency of other count need not be considered.
Where there was a conviction on one count freo from error, and sentence was sustainable thereunder, the sufficiency of another count in the indictment need not be considered.
In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.
James C. Michael was convicted of presenting fraudulent claims for damages sustained from interstate shipment of coal, and ho brings error.
Affirmed.
Harry S. Ditchburne and Marcia Eisner Lewis, both of Chicago, Ill. (Benjamin P. Epstein, of Chicago, Ill., of counsel), for plaintiff in error.
Edward J. Hess, of Chicago, Ill., and J. Stanley Payne, of Washington, D. C., .for the United States.
Before ALSCHULER, EVANS, and, PACE, Circuit Judges.
EVAN A. EVANS, Circuit Judge.
Defendant was charged with having presented fraudulent claims for damages sustained in the shipment of coal, such transportation being interstate, and with having conspired with others to commit the offense “of unlawfully obtaining certain allowances, refunds and payments from common carriers,” etc. The indictment contained eleven counts, but one was withdrawn from the jury. Upon conviction on all remaining counts, defendant was given a sentence that might properly have been imposed upon his conviction on any single count of the indictment. The errors assigned deal with the instructions, the admission of evidence, the construction of the statute involved, and the sufficiency of the count charging a conspiracy.
The evidence is sufficient to support the verdict so far as it relates to the presentation of false and fraudulent claims, but it is insisted that as to several counts it failed to sho.wthat defendant either delivered the property for transportation to a common carrier or that such common carrier transported property for him “as consignor or consignee.” Whether defendant was a “consignee,” within the meaning of paragraph 3, § 10, of the Act to Regulate Commerce (Comp. St. § 8574), in view of the assertion that he was a stranger to the bill of lading (a question not free from serious doubt), we need not determine; for it appears that, as to one or more of the charges, defendant was the “consignee” named in the bill of lading.
The contention that the shipment was intrastate, and therefore the Act to Regulate Commerce was not applicable, is based, upon the showing that shipment in each instance was from a point in Illinois to Chicago, Ill. It further appears, however, that the freight passed from Southern Illinois into Indiana, and back to Illinois, before reaching Chicago. It was therefore interstate transportation. Western Union Tel. Co. v. Speight, 254 U. S. 17, 41 S. Ct. 11, 65 L. Ed. 104.
The assignment of error respecting the admission of evidence is predicated upon the statement of the witness Hurley, who testified that she was the bookkeeper of the Merchants’ Coal & Coke Company; that the company, in the ordinary-course of business, received a notice of shipment from the mine, which she entered in the ear record book, showing from whom it was purchased, the date, and the price. She further testified that some of the records were made by one Miss Anderson, no longer in the employ of the company. Her testimony as to price of coal was in part based upon the extensions thus made by Miss Anderson, and in part upon the cards above referred to.
Such evidence could not possibly have prejudiced defendant. He was being charged with having presented various claims false in fact, and the amount of such claims was not in this case of much importance. Moreover, other testimony conclusively established the actual purchase price of the coal. Such testimony was undisputed, and stood as a verity in the ease. We have no hesitancy in concluding that no prejudicial error was committed in the reception of this evidence.
Defendant, at the close of the court’s charge, requested the following additional instruction: “I also instruct you that under the law a defendant in a criminal case is not required to testify in his own behalf. He may do so, or not, as he chooses. The failure of the defendant to take the stand as a witness in his own behalf must not be considered by you in any way as an element against such defendant, nor be permitted by you in your deliberation to militate against him.”
This request was granted, but the judge added the following: “I am not to be understood, however, as indicating to you the view that an uneontradieted fact in the case is to be looked upop. by you, in view of anything which I have said on this subject in any other light than as an uneontradieted fact.”
The bill of exceptions does not contain all the instructions given. We are therefore unable to say whether defendant was prejudiced by the last instruction given, a portion of which was invited by his own counsel. Whether an accused is prejudiced by any particular language in a charge can only be ascertained by an examination of the entire charge. Colt v. United States, 190 F. 308, 111 C. C. A. 205. Not infrequently does it occur that language which, standing alone, might be subject to criticism, is entirely harmless when read in connection with other portions of the instructions.
Viewing, the language complained of, however, disconnected from the balance of the charge, we find no basis for the criticisms made of it. Certainly the time has long passed in federal courts when instructions must be given in the language of counsel who proposes them. Not only the outline of the charge, but the language with which the thoughts are clothed, are matters for the sole determination of the trial judge. Only by allowing the judge the widest latitude in the analysis of the ease and the order of presentation, can a proper and intelligent presentation of the issues be made. If proposed instructions of counsel were alone given, the charge as a whole might stress the unimportant and minimize the important issues in the ease. It would be a collection of abstractions that would in no way help the jury in coming to a correct verdict. These evils can only be avoided when the judge, upon the close of the trial prepares his own charge, aided, it may be, by the suggestions that appear in the proposed instructions.
When an accused declines to take the witness stand, he is doubtless entitled to a statement from the court to the effect that his failure to testify shall not be construed against him. There seems to be a difference of opinion among the judges and the bar as to whether such reference to the accused’s failure to testify helps or injures him before the jury. Some courts have gone so far as to criticize the trial judge for giving such an instruction in the absence of a request.
There is always a possibility of the jury’s misunderstanding the court’s reference to defendant’s failure to testify, and it is entirely proper for the judge to add that which is here criticized. The instruction requested by counsel has little of merit to commend it. It is, we believe, impossible to remove entirely the effect of the failure of the accused to deny under oath charges preferred against him when opportunity for so doing arises. In the present case, however, the trial judge did all the accused asked him to do, and then added, what was entirely proper (Robilio v. U. S. [C. C. A.] 291 F. 975), that such failure to testify did not in any way destroy or impair the effect of uneontradieted facts.
The sufficiency of the eleventh count (the one charging a conspiracy) is challenged for various reasons. We pass them all, because the record discloses a conviction on another count, free from error, with a sentence sustainable on that count alone. Any error as to the conspiracy count, therefore, under well established precedents, would not justify a reversal.
Other assignments of error appear, but we do not believe they require special consideration. Some were waived on the oral argument, while the others do not appeal to us as possessing merit.
The judgment is affirmed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_judgdisc | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. 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".
MONCURE v. ATLANTIC LIFE INS. CO.
No. 2995.
Circuit Court of Appeals, Fourth Circuit.
Oct. 21, 1930.
Edward H. Horton, Atty., Bureau of Internal Revenue, of Washington, D. C. (Paul W. Koar, U. S. Atty., of Norfolk, Va., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for appellant.
Andrew D. Christian, of Richmond, Va., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge.
PER CURIAM.
This is an appeal in an action at law instituted in the court below to recover excess profits taxes assessed and collected for the calendar year 1917 from the Atlantic Life Insurance Company. That company is a stock life insurance company doing business on the level premium plan and issuing both participating and non-participating- policies. It is required by law to maintain a reserve of assets for the protection of its policy holders ; and the sole question involved is whether this legal reserve should be included in invested capital in the computation of its excess profits tax. We agree with the learned judge below that tho ease is controlled by the decision of the Supreme Court in Duffy v. Mutual Benefit Life Insurance Co., 272 U. S. 613, 47 S. Ct. 205, 71 L. Ed. 439, and cannot be distinguished on the ground that the company there was a purely mutual company, whereas the company here is a stock company. The relationship of the company and the policyholders to the reserve fund, not the right of the latter to the control and management of the company, is tho determining factor; and that relationship is the same here as it was shown to- be in the Duffy Case.
The amount paid in by policyholders and carried in the legal reserve of the company was certainly money paid in by them for shares in a common fund, a fund maintained under legal requirement for their benefit and invested for their advantage as well as for the "advantage of the company. It would thus seem to be invested capital within the clear meaning of clause 1 of section 207(a) of the Revenue Act of 1917, 40 Stat. 306. If, however, that clause be limited in meaning to money paid in by stockholders for shares of stock, then such payments, with interest earnings thereon, fall clearly within the classification of “paid-in or earned surplus” under clause 3. Nothing need be added to the able opinion filed in the cause by the judge below, and same is adopted as the opinion of this court.
Affirmed.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
O.J. VINCENT, Plaintiff-Appellee, v. A.C. & S., INC., et al., Defendants-Appellants.
No. 87-4247.
United States Court of Appeals, Fifth Circuit.
Dec. 7, 1987.
Lawrence G. Pugh, III, New Orleans, La., for Raymark, Inc.
John B. Scofield, Thomas M. Bergstedt, Richard M. Perles, Patrick D. Gallaugher, Jr., Lake Charles, La., for Turner & New-ell, et al.
Edward O. Taulbee, IV, Kenny L. Oliver, Lafayette, La., for Combustion Engineering, Inc.
William B. Baggett, Jr., William B. Bag-gett, Lake Charles, La., for plaintiff-appel-lee.
Before REAVLEY, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Appellants A.C. & S., Inc, et al. claim appellee Vincent’s cause of action based upon having become a victim of asbestosis is barred by Louisiana’s one year prescription period. La.Civ. Code Ann. art. 3492 (West Supp.1987). The district court denied appellants’ motion for summary judgment, holding prescription had not occurred because of the provisions of Articles 3466 and 3463 of the Louisiana Civil Code. We affirm the district court.
Facts
Appellee Vincent was diagnosed as having contracted asbestosis in 1981, and within the year of limitations sued eleven asbestos manufacturers. On March 15, 1984, a few days before trial, Vincent informed the district court that he had settled with the eleven defendant manufacturers for $200,-000. On the same day, the district court entered an order stating that the case was to be dismissed without prejudice upon stipulation to be submitted by the parties and subject to being reopened in ninety days if the settlement was not consummated.
The next day, March 16, 1984, (obviously prior to the ninety day expiration and final judgment in the first case), Vincent undertook to file a supplemental and amended complaint on the same cause of action against a new set of asbestos manufacturers. The district court determined that the 1982 suit against the original eleven defendant manufacturers had settled, and directed that the 1984 supplemental complaint be treated as a new case. On August 7, 1984, Vincent and the original eleven manufacturers, pursuant to Fed.R.Civ. P. 41(a), filed the formal stipulation of dismissal with prejudice called for in the court’s order of March 15. The second set of manufacturers, those of the 1984 suit, later moved for summary judgment claiming that the cause of action had accrued in 1981 and that the one year prescription period had already run against Vincent’s claim.
Under Louisiana law, prescriptions affecting one principal cause of action are interrupted by suit on that cause of action and run anew when the suit is no longer pending. Louviere v. Shell Oil Co., 720 F.2d 1403 (5th Cir.1983) (upon certification holding in accordance with the decision of the Louisiana Supreme Court interpreting La.Civ.Code Ann. art. 3466). Thus, looking only to this postulate, Vincent’s second asbestosis suit was filed prior to completion of his first suit. The statute of limitations was effectively tolled.
This tolling provision is limited, however, by La.Civ.Code Ann. art. 3463, which states in pertinent part:
Interruption [of prescription] is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial, [emphasis added].
If the March 15, 1984, closing order without prejudice was a “voluntary dismissal” within the meaning of La. art. 3463, then it erased the interruption of prescription by pre-dating Vincent’s 1984 suit. The district court ruled dubitante that the closing order was not a voluntary dismissal, denied the motion for summary judgment, and certified an appeal under 28 U.S.C. § 1292(b). The second set of manufacturers appeal.
DISCUSSION
The sole issue presented on appeal is whether voluntary dismissal of Vincent’s suit against the original eleven manufacturers (the 1982 suit) occurred before filing of the amendment which became the suit against the second set of manufacturers (the 1984 suit). Stated another way, the issue is whether the district court’s March 15, 1984, order dismissing the 1982 suit without prejudice was a voluntary dismissal under La. art. 3463. We find that the order was not a voluntary dismissal, because voluntary dismissal of the original 1982 suit occurred only after the 90 day postponement of final order by the district court. Before the expiration of the 90 day period, the petition to amend to include appellants had been filed. Thus, the 1984 suit against the second set of defendant manufacturers is not barred by prescription.
This case is in federal court under diversity jurisdiction. 28 U.S.C. § 1332. It is well established that federal procedural law and state substantive law apply in a diversity action. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed 1188 (1938). And state statutes of limitations are considered substantive for purposes of Erie analysis. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Abdul-Alim Amin v. Universal Life Ins. Co., 706 F.2d 638, 640 (5th Cir.1983). Thus, we apply Louisiana prescription law and the Federal Rules of Civil Procedure. First we address “voluntary dismissal” within the context of the La.Civ. Code Ann. art. 3463 tolling provision. We then consider the district court’s closing order as it relates to that provision.
While “voluntary dismissal” is the term used in La. art. 3463, whether or not there has been a voluntary dismissal in a case in federal court must depend on federal procedural law as implemented under Fed.R. Civ.P. 41(a). See Hilbun v. Goldberg, 823 F.2d 881 (5th Cign1987) (diversity case holding that a Fed.R.Civ.P. 41(b) failure to prosecute constitutes a voluntary dismissal under La.Civ.Code Ann. art. 3463). Under Fed.R.Civ.P. 41(a), voluntary dismissal may occur: “(1) By Plaintiff; By Stipulation,” or “(2) By Order of Court.” We are not concerned with Rule 41(a)(1) dismissal by stipulation of plaintiff. In this case the parties did not formally stipulate to dismissal until August 7, 1984, — five months after Vincent filed against the second set of manufacturers. But under Rule 41(a)(2) voluntary dismissal may also occur by order of court. Thus, the core issue in the case is whether the district court’s order of March 15, 1984, was a voluntary dismissal by order of court.
The prospect is unseemly. Rule 41(a) is interpreted to refer to dismissals made at the plaintiff’s request. Schwarz v. Folloder, 767 F.2d 125 (5th Cir.1985). See also 9 C. Wright and A. Miller, Federal Practice and Procedure 2364, at 165 (1971) (The purpose of 41(a)(2) “By Order of Court” dismissal is to protect the defendant from prejudice by plaintiff-instigated dismissals). Vincent never instigated dismissal, at least not until the formal stipulation in August of 1984. He merely notified the district court in March that his first suit had settled. The district court’s closing order of March 15, 1984, was only a tentative termination of the first suit. The district court specifically called for a stipulation to be submitted by the parties and further allowed for the possibility of the case being “reopened” if settlement was not finalized within ninety days. The fact that the district court assigned a new number to the case did not change the fact that it was an amendment to the first suit because the court order recognized the settlement was “with a reservation of rights.” This amendment occurred before formal stipulation of dismissal in the first suit. Thus, the provision of La.Civ.Code Ann. art. 8463 tolled the running of limitations and the suit against the second set of defendant manufacturers is not time barred. We affirm the district court’s denial of the motion for summary judgment which was based upon prescription.
AFFIRMED.
. La.Civ.Code Ann. art. 3466 (West Supp.1987) states:
If prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption.
. La.Civ.Code Ann. art. 3463 (West Supp.1987) states:
An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescription period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses, or fails to prosecute the suit at the trial. [Emphasis added].
. This statute has been interpreted to apply to suits filed after voluntary dismissal. But it does not apply to suits filed more than one year after the tort which are based on the same cause of action as that of a timely suit which is later dismissed. Levy v. Stelly, 277 So.2d 194 (La.App.1973).
. Manufacturer Raymark settled with Vincent and was dismissed from the appeal.
. La.Civ.Code Ann. art. 3463, Comment b states in pertinent part:
[I]f an interruption results and the action is dismissed without prejudice, the period during which the action was pending does not count toward the accrual of prescription. The plaintiff then has the full prescriptive period within which to bring a new action. See Hebert v. Cournoyer Oldsmobile-Cadillac-SMC, Inc., 405 So.2d 359 (La.Att. 4th Cir.1981).
This provision shows that a Louisiana law is in accordance with our holding that “voluntary dismissal" under art. 3463 does not include tentative dismissals, such as the district court’s closing order.
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_majvotes | 4 | 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.
Renee Patrice GILLIAM and Reuben Lemuel Gilliam, Jr., infants, by Reuben L. Gilliam and Joy T. Gilliam, their father and mother and next friends, and all others of the plaintiffs, Appellants, v. SCHOOL BOARD OF the CITY OF HOPEWELL, VIRGINIA, and Charles W. Smith, Division Superintendent of Schools of the City of Hopewell, Virginia, Appellees (two cases).
Nos. 9625, 9626.
United States Court of Appeals Fourth Circuit.
Argued Nov. 5, 1964.
Decided April 7, 1965.
Albert V. Bryan, Circuit Judge, dissented in part.
See also 4 Cir., 332 F.2d 460.
Henry L. Marsh III, and'S. W. Tucker, Richmond, Va., for appellants in No. '9625 and appellees in No. 9626.
Frederick T. Gray, Richmond, Va. (Williams, Mullen & Christian, Richmond, Va., on brief), for appellees in No. '9625 and appellants in No. 9626.
Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN .and J. SPENCER BELL, Circuit Judges, .sitting en banc.
HAYNSWORTH, Circuit Judge.
These are cross appeals from an order •of the District Court approving Hopewell’s geographic plan for the assignment of pupils to its schools and refusing to require the retransfer of certain Negro pupils attending schools outside of their geographic zones under a previous order of the Court. Finding no error on •either appeal, we affirm.
Hopewell, Virginia, is an industrial ■city located at the confluence of the James and Appomattox Rivers. It is roughly bisected by the Norfolk and Western Railroad, which runs from Hopewell’s southwestern border roughly northeasterly to the James River, while the Seaboard Airline Railroad divides the city in an approximately east-west direction. Except in the southwestern portion of the city, the Norfolk and Western Railroad is bounded on its southeastern side by many factories, and there are long reaches of that railroad which are uncrossed by streets. These railroads, and the industrial sections which bound them, constitute obvious and natural geographic boundaries between residential areas, some of which are made remote from each other by the intervening industrial, nonresidential sections which abut the railroads.
The School Board adopted a geographic zoning plan. The zone boundaries were drawn along natural geographic boundaries, particularly the railroads. The schools are centrally located in each zone, except for two zones in areas annexed to the City of Hopewell after those two schools had been constructed.
Some Negroes live on the northwestern side of the Norfolk and Western railroad. They are in an elementary school zone in which the majority of the residents are white. Pupils from the elementary school in that zone are fed automatically to a high school in which the majority of the pupils are white.
The great majority of the Negro residents of Hopewell live on the southeastern side of the Norfolk and Western Railroad. With an exception to be mentioned presently, the residential areas in which they live are separated from residential areas inhabited principally by white people by the railroad and by industrialized, nonresidential sections. One elementary school is located centrally in the area it serves, as is another combined elementary and high school attended entirely by Negroes. A third elementary school attended solely by Negroes is located at the extended city limits, this being one of the schools which came into the Hopewell City School System by annexation after it had been constructed.
When this action was first commenced and before the court approved Hopewell’s geographic zoning plan, it ordered the admission of the then infant plaintiffs into the schools of their choice. They were admitted, after which the School Board took an appeal to this Court. We held that the question was moot, since the order required their admission only for the current year and the School Board had fully complied with the order.
Thereafter, after some modification of the plan, principally the addition of a provision giving any child who lived nearer to a school outside of the zone in which its residence was located a right to attend that school, the District Court approved the plan. It refused, however, to require, or permit, the involuntary retransfer of the original plaintiffs transferred pursuant to the earlier order of the Court.
The plaintiffs concede, in general, that the elementary school zone boundaries were drawn along natural geographic boundaries and barriers. They contend as unreasonable only the boundary between Arlington and Woodlawn School zones. That boundary, however, runs along a main arterial highway, and the plaintiffs can suggest no other boundary between those zones of geographic significance. Use of that boundary incorporates in the Woodlawn zone certain areas which are closer to Arlington School. However, any transfer to Arlington of any readily divisible portion of that part of the Woodlawn School zone lying closer to Arlington School would result in a transfer to Arlington School of far more pupils than it could receive, leaving Woodlawn School greatly under-populated.
These are the two schools which Hopewell acquired by annexation of adjacent territory. Neither is centrally located in the zone it serves, but the main highway along which the School Board has drawn the boundary which separates those two zones is patently the most logical and reasonable. Such an artery is a natural boundary to choose in the absence of any other significant geographic feature. The fact that a portion of Woodlawn zone lies closer to Arlington School than Woodlawn School is not a valid objection to the plan when incorporating a portion of that area into the Arlington School zone would leave Arlington overwhelmed with pupils, for which it could not care, and Woodlawn greatly underpopulated. Arlington zone’s other boundaries are the limits of the City, the Seaboard Airline Railroad and industrial areas, so that there are no feasible compensating adjustments by which portions of the Arlington zone might be shifted to permit it to include a portion of Woodlawn zone.
Under these circumstances, the District Court was abundantly justified in concluding that the zone boundaries were reasonably drawn in accordance with natural geographic features and not on racial lines.
Assignments to the high schools are made in accordance with a feeder system. We find nothing objectionable in this when the primary school zoning is on a nonracial basis, for the result is, in effect to create reasonable zones for the high schools. The zones of those primary schools which feed each high school are collectively the zone for the high school. So viewed, the high school zones are as compact and reasonable as the primary school zones which we have considered.
The plaintiffs suggested below that the high school zones might have been drawn differently, but their suggestion was impractical because it would have overly crowded one school while under-populating another. The School Board’s lines achieved an even distribution of pupils, and there was an evidentiary basis supporting the District Court’s approval of them.
Under the plan, the School Board reserved the right to consider transfer applications to a school other than the one serving the zone in which the pupil resides if founded upon some specific reason, but the plan provides that the race of the applicant will not be a factor to be considered in granting or denying such a transfer application. The School Board in this Court insists that the reservation is intended to take care of extraordinary cases such as that of a crippled child whose mother is a teacher in a school other than one in the zone in which they reside. It is not to be used, the Board says, for the purpose of avoiding or increasing the extent of the mixing of the races in the schools which results from the geographic zoning plan. That is the clear purpose and effect of the plan’s limitation upon the reservation. The restriction saves the reservation which would otherwise be suspect, for permissive transfers of minorities granted because of their race are unlawful.
The plaintiffs object that the result of the geographic zoning is a large measure of de facto segregation. It is true that it is, but this is because of the residential segregation that exists. The Harry E. James School zone, for instance, bounded in part by Hopewell’s city limits, is otherwise largely surrounded by railroad classification yards and industrial tracks, with adjacent industrialized areas, which isolate the residential portions of that zone from all other residential areas. De facto segregation could be avoided for those pupils only by transporting them to distant schools.
While the Carter Woodson and the Arlington school zones are not so isolated as the Harry E. James school zone, substantially the same thing may be said of them. They are not gerrymandered zones designed to impose a segregated school population, but de facto segregation results from the fact that the surrounding residential areas are inhabited entirely by Negroes.
The Constitution does not require the abandonment of neighborhood schools and the transportation of pupils from one area to another solely for the purpose of mixing the races in the schools.
The plaintiffs also complain that the District Court did not order a general reassignment of teachers and administrative personnel on a nonracial basis. There has been no inquiry into that matter in the District Court, and the failure of the District Court here to enter an order in accordance with this request of the plaintiffs is affirmed for the reasons stated in Bradley v. School Board of City of Richmond, Virginia, 4 Cir., 345 F.2d 310 (decided today).
The School Board’s appeal from the Court’s refusal to require or permit the involuntary reassignment of the fifteen pupils we also find to be without merit.
It is true that in our earlier opinion we held that the original order of the District Court required the admission of these fifteen pupils to the schools of their choice for the then current school year only. That was the school year of 1963-4. Under the geographic zoning plan, which the Court has now approved, those fifteen pupils would be assigned to other schools than those they now attend.
A reassignment of those fifteen pupils to the schools they attended prior to 1963-4 may have a substantially adverse effect upon them. The District Court was entitled to give consideration to that fact, though their continued attendance at the schools where they were assigned for 1963-4 is inconsistent with the otherwise uniformity of the geographic attendance plan.
In approving a geographic zoning plan, indeed, any other plan for the assignment of pupils, a District Court has a large measure of discretion in imposing such conditions or exceptions as fairness and justice seem to it to require. The question, therefore, is not answered by a finding that the assignment of these pupils is a departure from the geographic zoning plan which we now approve. It is an exception to it, but the exception imposed by the District Court in the interest of fairness to these fifteen individuals was not beyond the range of discretion vested in it.
We find no reversible error in the Order of the District Court.
Affirmed.
. Gilliam v. School Board of City of Hopewell, Virginia, 4 Cir., 332 F.2d 460.
. Goss v. Board of Education of City of Knoxville, Tennessee, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632; Dillard v. School Board of City of Charlottesville, 4 Cir., 308 F.2d 920.
. Bell v. School City of Gary, Indiana, 7 Cir., 324 F.2d 209; see also Bradley v. School Board of City of Richmond, Virginia, 4 Cir., 345 F.2d 310 (decided this day).
. Gilliam v. School Board of City of Hopewell, Virginia, 332 F.2d 460.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
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.
Jacob GARELICK and Sidney Garelick, co-partners, trading under the firm name of Capitol Automotive Supply Co., Plaintiffis-Appellants, v. GOERLICH’S, INC., Defendants-Appellees.
No. 15291.
United States Court of Appeals. Sixth Circuit.
Oct. 30, 1963.
William E. Speer, Detroit, Mich., for appellants.
Fred A. Smith, Toledo, Ohio, for ap-pellees, Carolyn J. McNeill, Cobourn, ' Yager, Smith & Flavey, Toledo, Ohio, . on the brief.
Before WEICK, Circuit Judge, TAYLOR, District Judge, and DARR, Senior District Judge.
PER CURIAM.
The lower court sustained defendant-appellee’s motion for summary judgment made in plaintiff-appellants’ cause of action for treble damages under the antitrust laws [15 U.S.C.A. § 15] upon the ground that the four year statute of limitations [15 U.S.C.A. § 15b] had barred the right to sue. The suit is based on section 1 of the Sherman Act [15 U.S.C.A. § 1]..
The uncontroverted proof revealed that prior to October 1956, the plaintiffs-appellants were distributors for the defendant-appellee’s products. By letter dated September 4, 1956, defendant-ap-pellee notified plaintiffs-appellants that it would cease doing business with them on October 1, 1956, and did so. This suit was instituted January 17, 1962, more than five years after the receipt of such letter.
Unless some legal reason appears to the contrary, it is obvious that the four year statute of limitations had run at the time this suit was begun. The plaintiffs-appellants so concede.
The plaintiffs-appellants interposed two affidavits stating that two incidents occurred, one in February 1959 and the other in October 1961, which were overt acts and each incident resulted in an accrual of the cause of action. This position would be correct provided that either one or both of the overt acts caused damage to the plaintiffs-appellants. All the authorities are in accord that a right of action for a civil conspiracy under the antitrust laws accrues from the commission of the last overt act causing injury or damage. Suckow Borax Mines Consol, v. Borax Consol., 9 Cir., 185 F.2d 196, certiorari denied 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680, rehearing denied 341 U.S. 912, 71 S.Ct. 620, 95 L.Ed. 1349; Momand v. Universal Film Exchanges, 1 Cir., 172 F.2d 37, certiorari denied 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118, rehearing denied 337 U.S. 934, 69 S.Ct. 1493, 93 L.Ed. 1740; Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F.2d 742, certiorari denied 315 U.S. 613, 57 S.Ct. 315, 81 L.Ed. 452; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 73 F.2d 333, 97 A.L.R. 133, certiorari denied 294 U.S. 719, 55 S.Ct. 546, 79 L.Ed. 1251; Steiner v. 20th Century-Fox Film Corp., 9 Cir., 232 F.2d 190.
If the statute of limitations were tolled, or an accrual of a suit set up by an overt act which did not cause damage, “ * * * it would effectively destroy the statute of limitations as a statute of peace.” Crummer Co. v. Du Pont, 5 Cir., 223 F.2d 238, 248, certiorari denied 350 U.S. 848, 76 S.Ct. 85, 100 L.Ed. 755.
The affidavit as to the incident occurring in February 1959 is to the effect that a representative of plaintiffs-appellants called defendant-appellee and asked to be reinstated as a distributor and the person who answered the telephone said he was sending Mr. Perkins to call on plaintiffs-appellants, but that Perkins never called.
The affidavit concerning the incident of October 1961 states that a representative of the defendant-appellee called on plaintiffs-appellants to sell defendant-appellee’s products. Someone speaking for plaintiffs-appellants stated that he was surprised that a representative would seek to sell them as defendant-appellee had refused to sell to plaintiffs-appellants. The salesman said he would take it up with the principal but plaintiffs-appellants heard nothing further.
The conduct on these two occasions might be overt acts but obviously the plaintiffs-appellants were not in anyway injured or damaged thereby. The incidents were simply acts that reflected that defendant-appellee continued in refusing to sell its products to plaintiffs-appellants.
The District Judge’s ruling was correct and the judgment is accordingly affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_direct1 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider 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.
E. C. SOLINSKY v. UNITED STATES.
No. 7859.
Circuit Court of Appeals, Ninth Circuit.
June 17, 1935.
George Neuner, of Portland, Or., for appellant.
Carl C. Donaugh, U. S. Atty., of Portland, Or.
Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.
PER CURIAM.
Upon stipulation of counsel for respective parties, ordered appeal dismissed; judgment of dismissal filed and entered accordingly, and mandate forthwith.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_genapel2 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Anibal SOBERAL-PEREZ, on behalf of himself and all others similarly situated, Plaintiff-Appellant, Benito Cortez, Intervenor-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee.
No. 1243, Docket 82-6340.
United States Court of Appeals, Second Circuit.
Argued April 27, 1983.
Decided Aug. 30, 1983.
Arthur J. Fried, New York City (Kalman Finkel, Attorney-in-Charge, The Legal Aid Society, Civil Division, New York City, Joan Mangones, Attorney-in-Charge, Staten Island Neighborhood Office, Staten Island, N.Y., Kathleen A. Masters, New York City, of counsel), for plaintiff-appellant and in-tervenor-appellant.
Robert L. Begleiter, New York City, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Miles M. Tepper, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for defendant-appellee.
Jack John Olivero, New York City (Puer-to Rican Legal Defense & Education Fund, Inc., New York City, Robert L. Becker, New York City, of counsel), for amicus curiae.
Before LUMBARD, NEWMAN and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
We are faced on this appeal with the question of whether the defendant Secretary’s failure to provide written notices and oral instructions, information, and advice in the Spanish language violates the statutory protection against discrimination found in § 601 et seq. of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., or plaintiffs’ constitutional rights to due process and equal protection of the law. Plaintiffs and plaintiff-intervenors, (hereinafter “plaintiffs”) are Hispanics with limited abilities in the English language. Their initial claims for social security and/or supplemental security income (hereinafter “social security”) benefits were denied allegedly because of the Secretary’s failure to provide notices and oral instructions in Spanish. The district court found that plaintiffs had failed to state either a statutory or constitutional claim and granted the Secretary’s motion to dismiss the complaint. Soberal-Perez v. Schweiker, 549 F.Supp. 1164 (E.D.N.Y.1982). We affirm.
Each plaintiff’s dominant language is Spanish, and each has at most a limited ability to speak and understand English. Plaintiffs Soberal-Perez, Cortez, and Car-ballo each applied for disability benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-431 (1976 & Supp. V 1981), or supplemental security income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1976 & Supp. V 1981), or both. All received notices of denial of their claims in English, and, allegedly because of their inability to understand these notices and the oral instructions given at the social security office, all waived a right to a hearing or failed to file timely appeals.
Plaintiff De La Cruz, a recipient of benefits under Title XVI, was advised by social security personnel to return to work for a sufficient number of quarters to qualify for retirement benefits, but after he had done so was informed that his earnings had not been properly included in the computation of his benefits and that the overpayment would be recovered from future checks. He requested a waiver on the ground that he did not understand the reporting requirements but, after a hearing at which plaintiff was represented by counsel and a translator was present, this request was denied.
After commencement of this lawsuit, all claims but that of De La Cruz were remanded to the Secretary for full evidentia-ry hearings. Plaintiffs Cortez and Carballo have been awarded benefits. Soberal-Perez lost on the merits and, when the district court affirmed in a separate decision, he did not appeal.
Plaintiffs allege that the Secretary’s failure to print notices and forms in Spanish and to provide oral instructions in Spanish at the social security office violated their due process and equal protection rights as well as their rights under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. They seek a judgment declaring that the Secretary’s actions violate their constitutional and statutory rights and an injunction requiring the Secretary to provide documents and oral services in the Spanish language to persons in plaintiffs’ position. An examination of plaintiffs’ claims convinces us that the district court was correct in dismissing the complaint.
Title VI Claims.
Section 601 of Title YI of the Civil Rights Act of 1964 provides:
No person in the United States shall, on the ground of race, color, or national origin, be' excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d (1976). Plaintiffs challenge the district court’s conclusion that Title VI does not apply to direct benefit programs such as Titles II and XVI of the Social Security Act. The district court read the language of Title VI, 42 U.S.C. § 2000d-1 (1976), which empowers federal agencies to cut off funds for noncompliance with the statute, as well as the legislative history of the 1964 Civil Rights Act, to support the view that Title VI does not apply to the social security programs at issue here because they are directly administered by the federal government rather than through a state or local intermediary. Plaintiffs argue that the legislative history and the case law recognizing a private right of action under Title VI, see Cannon v. University of Chicago, 441 U.S. 677, 696 and n. 21, 99 S.Ct. 1946, 1957 and n. 21, 60 L.Ed.2d 560 (1980) (citing cases), mandate a contrary result.
As the district court noted, the language of § 601 does not definitively exclude programs receiving direct funding through federal legislation since, strictly speaking, they are “programas] or activities] receiving Federal financial assistance.” However, § 602 of Title VI, 42 U.S.C. § 2000d-1, which was hotly debated prior to its passage, grants a rulemaking power to “[e]ach Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract”. 42 U.S.C. § 2000d-l. Compliance with any requirement issued pursuant to this rulemaking authorization “may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient * * * or (2) by any other means authorized by law”. Id. This compliance mechanism does not reach programs under Titles II and XVI of the Social Security Act because they do not receive financial assistance through “grant, loan, or contract”. As viewed by the district court, if Congress had intended Title VI to apply to direct benefit programs, it would have developed a method to enforce compliance applicable to those programs. Soberal-Perez v. Schweiker, 549 F.Supp. at 1172.
While we agree with the district court that the language of § 602 gives some indication that Congress did not intend direct benefit programs to fall within the ambit of Title VI, we find further support for this conclusion in the regulations promulgated by the Secretary and the legislative history of the statute. In addition, although we have found only one case directly on point, Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C.1974) (cash payments made directly by federal government not covered by Title VI), aff’d mem., 529 F.2d 514 (4th Cir.1975), the conclusion we draw from the case law interpreting Title VI is that the statute was meant to cover only those situations where federal funding is given to a non-federal entity which, in turn, provides financial assistance to the ultimate beneficiary.
Section 602 provides that any “recipient” found in noncompliance with Title VI may be subject to a termination of funds to the program or activity receiving federal financial assistance. The regulations promulgated by the Secretary under Title VI define a “recipient” as
any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.
45 C.F.R. § 80.13(i) (1982). This definition does not include federal agencies which directly administer programs such as Titles II and XVI of the Social Security Act. Thus, the Secretary’s own interpretation of the statute excludes federal agencies from the scope of her enforcement powers. While we do not consider the Secretary’s interpretation the last word on the subject, the fact that, in promulgating regulations to facilitate compliance with Title VI, the Secretary, as well as the heads of other administrative agencies, see, e.g., 24 C.F.R. § 1.2(f) (1982) (Department of Housing and Urban Development); 28 C.F.R. § 42.102(f) (1982) (Department of Justice), has excluded direct benefit programs from the definition of those whose funds may be cut off for noncompliance with Title VI, is entitled to some consideration. See NLRB v. Bell Aerospace, 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974); Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); United States v. Bergh, 352 U.S. 40, 46-47, 77 S.Ct. 106, 109-10, 1 L.Ed.2d 102 (1956).
We need not rest our conclusion that Title VI is not applicable to direct benefit programs on the language of the statute and the Secretary’s interpretation alone. The lengthy congressional debates prior to the passage of the Civil Rights Act of 1964 strongly indicate that, in enacting Title VI, Congress was in part addressing its concern that federal moneys not be used to finance racially segregated state, local, and private programs. See Cannon v. University of Chicago, 441 U.S. at 704, 99 S.Ct. at 1961; Regents of the University of California v. Bakke, 438 U.S. 265, 285 and n. 19, 98 S.Ct. 2733, 2745 and n. 19, 57 L.Ed.2d 750 (1978).
The Congressional Record is replete with statements by representatives and senators indicating that the legislation was intended to cover situations where the federal government extends assistance to a state or local program or activity which in turn distributes it to beneficiaries of the program. For example, Senator Kuchel, speaking in support of Title VI, said, “No recipient is required to accept Federal aid. If a State or municipality or other local government agency does so, it does so voluntarily. It ought not to receive it if it is dedicated to use it in an unconstitutional manner.” 110 Cong.Rec. 6562 (1964). Emphasis in Congress was placed on the fact that the proposed legislation applied to programs involving financial assistance by “grant, loan, or contract.” Kg., id. at 6543 (remarks of Senator Humphrey); id. at 6561 (remarks of Senator Kuchel); id. at 2464 (remarks of Congressman Poff). And Senator Keating, defending the proposed legislation against its very vocal opponents, stated that “[g]en-erally, a recipient will be a State or political subdivision” but that the statute “could [also] involve Federal assistance to private organizations.” Id. at 9111. The overall impression we draw from these statements is that congress intended Title VI to apply to programs or activities involving three parties: a federal agency, a state or local intermediary administering the program, and an ultimate beneficiary.
Furthermore, some statements made during the congressional debates on Title VI appear to exclude expressly direct benefit programs such as Titles II and XVI of the Social Security Act from Title VI coverage. Senator Humphrey’s statement that “title VI will have no practical effect on [social security] programs” in part because the federal government cannot engage in racial discrimination, id. at 6544-45, supports the argument that proponents of the legislation apparently believed that the Constitution and the Social Security Act itself provided sufficient protection against discrimination in direct benefit programs. See Soberal-Perez v. Schweiker, 549 F.Supp. at 1172.
In response to charges that a person’s social security benefits might be terminated if he or she engaged in discrimination, Senator Ribicoff stated:
The bill has to do with Federal assistance. Social security is a direct-payment program. It is a direct payment received by the individual. The individual who receives a direct payment has a right. It has nothing to do with Federal assistance. It is not Federal assistance to an individual, but a direct payment. Direct payments are not covered in any way by Title VI.
110 Cong.Rec. 8424 (1964) (emphasis supplied). Later in the same debate, Senator Ribicoff continued this theme:
[Ejvery proponent of the measure who has stood on the floor of the Senate has time and time again said that social security payments would not be covered by the measure. That is the legislative history which has been made on the bill.
Id. at 8426. And shortly thereafter, he said
Since the social security payment to an individual is not a part of a program or activity covered by title VI in the first place, it need not be specifically exempted. Id.
Senator Keating also indicated that Title VI had no applicability to direct benefit programs: “Only where an intervening State or local governmental agency exists could the misapplication of assistance even potentially occur.” Id. at 9113.
Finally, Deputy Attorney General Kat-zenbach of the Justice Department, in response to a request from Congressman Cel-ler for a list of programs and activities within the scope of Title VI, stated:
[D]isability benefits under title II of the Social Security Act might be considered to involve financial assistance by way of grant. But to the extent that there is financial assistance in either type of program, the assistance is to an individual and not to a “program or activity” as required by title VI. In any event, title VI would not substantially affect such benefits, since these payments are presently made on a nondiscriminatory basis, and since discrimination in connection with them is precluded by the fifth amendment to the Constitution * * *. Accordingly, such programs are omitted from the list [of programs covered by Title VI].
109 Cong.Rec. 13380 (1963).
We are aware that many of these statements were made in response to charges by the bill’s opponents that individual recipients of direct federal benefits might have their payments terminated if they were found to discriminate in some way. Nevertheless, the clear import of the congressional debates is that Congress did not intend the direct benefit programs of social security to be within the scope of Title VI. It was not thought to be necessary because the fifth amendment and the Social Security Act itself prohibited discrimination in the payment of benefits.
Finally, the analysis employed in cases addressing other issues under Title VI also lends support to the conclusion that direct benefit programs are not covered. In Regents of the University of California v. Bakke, supra, Justice Brennan stated that the legislative history of Title VI “reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged in by government.” 438 U.S. at 329, 98 S.Ct. at 2768. (Brennan, J., concurring in part and dissenting in part). And Justice Marshall’s dissent in Guardians Association v. Civil Service Commission of the City of New York, — U.S. —, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), reinforces the conclusion that Title VI covers programs or activities involving indirect payments to beneficiaries:
In exchange for federal moneys, recipients have promised not to discriminate. Because Title VI is intended to ensure that “no person” is subject to discrimination in federally assisted programs, private parties function as third-party beneficiaries to these contracts.
Id. at —, 103 S.Ct. at 3248. See Lau v. Nichols, 414 U.S. 563, 571 n. 2, 94 S.Ct. 786, 790 n. 2, 39 L.Ed.2d 1 (1974) (Stewart, J., concurring). This emphasis upon the contractual nature of the receipt of federal moneys in exchange for a promise not to discriminate is still another reason to conclude that Title VI does not cover direct benefit programs since these programs do not entail any such contractual relationship.
Our conclusion, based on our examination of the statute itself, its legislative history, and the inferences which can be drawn from the case law, is that Title VI was not intended to apply to Titles II and XVI of the Social Security Act. Accordingly, the district court was correct in dismissing plaintiff’s statutory claims, and we need not reach the apparently still unsettled question of whether Title VI requires a showing of intentional discrimination. Compare Guardians Association v. Civil Service Commission of the City of New York, —U.S. —, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), and Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), with Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Nor need we consider the proposition, supported by at least four members of the Court, that non-discrimination regulations promulgated under Title VI may be found violated upon a showing only of disparate impact, Guardians Association, supra, —U.S. at — n. 2, 103 S.Ct. at 3223 n. 2 (White, J., announcing judgment of the Court); id. at —, 103 S.Ct. at 3249-3251 (Stevens, J. with whom Brennan and Blackmun, JJ., join, dissenting), since the regulations on which plaintiffs rely, 45 C.F.R. Part 80 (1982), like Title VI itself, do not apply to direct benefit programs, id. §§ 80.1, .2, .13(f), (g), and (i).
Equal Protection Claims.
Plaintiffs’ first constitutional claim is that the Secretary’s failure to provide forms and services in Spanish discriminates against Hispanics on the basis of national origin and thus violates their right to equal protection of the law incorporated into the fifth amendment by the due process clause, see Hampton v. Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903-04, 48 L.Ed.2d 495 (1976); Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954). The district court dismissed this claim for failure to allege a violation of equal protection principles. We agree.
Where governmental action disadvantages a suspect class or burdens a fundamental right, the conduct must be strictly scrutinized and will be upheld only if the government can establish a compelling justification for the action. See, e.g., Regents of the University of California v. Bakke, 438 U.S. at 299-300, 98 S.Ct. at 2752-2753; San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). Where a suspect class or a fundamental right is not implicated, the challenged action need only be rationally related to a legitimate governmental purpose. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). While entitlement to social security benefits is not a fundamental right, Weinberger v. Salfi, 422 U.S. 749, 771-72, 95 S.Ct. 2457, 2469-70, 45 L.Ed.2d 522 (1975), Hispanics as an ethnic group do constitute a suspect class for the purpose of equal protection analysis, Keyes v. School District No. 1, 413 U.S. 189, 197, 93 S.Ct. 2686, 2691-92, 37 L.Ed.2d 548 (1973); Hernandez v. Texas, 347 U.S. 475, 477-79, 74 S.Ct. 667, 669-71, 98 L.Ed. 866 (1954). Nevertheless, the conduct at issue here, the Secretary’s failure to provide forms and services in the Spanish language, does not on its face make any classification with respect to Hispanics as an ethnic group. A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class. Frontera v. Sindell, 522 F.2d 1215, 1219-20 (6th Cir.1975); Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir.1973).
Plaintiffs’ claim is that the Secretary’s conduct, although neutral on its face, nevertheless discriminates against Hispanics who are unable to speak or understand English. It is true that facially neutral conduct can constitute discrimination in violation of the Equal Protection Clause; however, such a claim requires that a plaintiff show an intent to discriminate against the suspect class. Arlington Heights v. Metropolitan Homing Corp., 429 U.S. 252, 265-70, 97 S.Ct. 555, 563-66, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 240-42, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976); see Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979). Plaintiffs have not alleged the requisite intent. The complaint states that the Secretary’s failure to provide Spanish language services reflects a preference for English-speaking people over Hispanics. However, as we noted above, the Secretary’s action reflects, at most, a preference for English over all other languages.
Plaintiffs argue that intent to discriminate against Hispanics may be inferred because “the natural, probable and foreseeable result” of the Secretary’s action is a disproportionate impact upon . Hispanics. “ ‘Discriminatory purpose’, however, implies more than intent as volition or intent as awareness of consequences.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 279, 99 S.Ct. at 2296. To establish intentional discrimination, a plaintiff must show that “the decisionmaker * * * selected or reaffirmed a particular course of action at least in part ‘because of’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” Id. (footnote omitted). While it is true, as plaintiffs argue, that the fact that a particular action has a foreseeable adverse impact may be relevant evidence in proving an equal protection claim, Dayton Board of Education v. Brinkman, 443 U.S. 526, 536 n. 9, 99 S.Ct. 2971, 2978 n. 9, 61 L.Ed.2d 720 (1979); Lora v. Board of Education of the City of New York, 623 F.2d 248, 250 (2d Cir.1980), standing alone that fact is insufficient to establish discriminatory intent, id. And plaintiffs have failed to show either in their complaint or their memorandum or at oral argument that they can allege in good faith, much less prove, any other evidence of discriminatory intent.
This is a case where “the legitimate non-invidious purposes of a law cannot be missed.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 275, 99 S.Ct. at 2294. It is not difficult for us to understand why the Secretary decided that forms should be printed and oral instructions given in the English language: English is the national language of the United States.
Ironically, plaintiffs’ argument that the use of Spanish is mandated only because of the size of our nation’s non-English-speaking Hispanic population, in itself suggests a violation of equal protection principles. A suspect class does not merit constitutional protection against discrimination merely because it has reached “major” proportions. A decision to provide Spanish language services as well as English would merely shift the alleged discrimination to all other non-English-speaking groups. See Frontera v. Sindell, 522 F.2d at 1219.
Since we have determined that the Secretary’s action does not discriminate against Hispanics as a group, our inquiry must focus on whether the action bears a rational relationship to a legitimate governmental purpose. See, e.g., Clements v. Fashing, 457 U.S. 957, 968, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508 (1982); Massachusetts Board of Retirement v. Murgia, 427 U.S. at 314, 96 S.Ct. at 2567. We need only glance at the role of English in our national affairs to conclude that the Secretary’s actions are not irrational. Congress conducts its affairs in English, the executive and judicial branches of government do likewise. In addition, those who wish to become naturalized United States citizens must learn to read English. 8 U.S.C. § 1423 (1976 & Supp. II 1978). (Because they were born in Puerto Rico, plaintiffs Soberal-Perez, Cortez, and Carballo are citizens of the United States, 8 U.S.C. § 1402 (1976), and need not establish any fluency in English, Arroyo v. Tucker, 372 F.Supp. 764, 766 (E.D.Pa.1974)). Given these factors, it is not irrational for the Secretary to choose English as the one language in which to conduct her official affairs. See Frontera v. Sindell, 522 F.2d at 1219; Carmona v. Sheffield, 325 F.Supp. 1341, 1342 (N.D.Cal.1971), aff’d, 475 F.2d 738 (9th Cir.1973).
Due Process Claims.
Plaintiffs’ final claim is that they were denied the adequate notice and meaningful opportunity to be heard guaranteed by the due process clause. Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909, 47 L.Ed.2d 18 (1976); Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190-91, 14 L.Ed.2d 62 (1965). Because plaintiffs did not specifically argue this claim before the district court, the district judge concluded that it had been abandoned; nevertheless, he considered the claim on its merits Soberal-Perez v. Schweiker, 549 F.Supp. at 1166 n. 2, and so shall we.
Plaintiffs’ interest in the receipt of social security benefits is protected by the due process clause of the fifth amendment. Mathews v. Eldridge, 424 U.S. at 332, 96 S.Ct. at 901. The question before us is what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). While the fundamental tenets of due process require adequate notice to ensure that all parties have a meaningful opportunity to be heard, Armstrong v. Manzo, 380 U.S. at 552, 85 S.Ct. at 1191, due process “is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 17, 43, 1748-49, 6 L.Ed.2d 1230 (1961). Rather, it calls for procedures fitted to the circumstances of particular situations. Goss v. Lopez, 419 U.S. 565, 578, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600. The basic standard to be applied is one of reasonableness. “The notice must be of such nature as reasonably to convey the required information * * * and it must afford a reasonable time for those interested to make their appearance”. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).
Plaintiffs argue that notice in English to those with limited English abilities is a “mere gesture [which] is not due process,” id. at 315, 70 S.Ct. at 657. We do not agree. Notice in the English language to social security claimants residing in the United States is “reasonably calculated” to apprise individuals of the proceedings.
In considering a similar claim, the Supreme Judicial Court of Massachusetts noted that “ ‘[n]otice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.’” Commonwealth v. Olivo, 369 Mass. 62, 69, 337 N.E.2d 904, 909 (1975) (quoting Essex National Bank v. Hurley, 16 F.2d 427, 428 (1st Cir.1926)). At issue in Olivo were official notices to vacate unsafe housing written in English and personally served on Spanish-speaking individuals who could not understand English. Id. 369 Mass. at 69, 337 N.E.2d at 906. Finding that this service constituted actual notice of the proceedings, the court held that it was “sufficient to put a reasonable person on notice that the order was important and, if not understood, required translation.” Id. at 70, 337 N.E.2d at 909. Thus, when served with an official notice in English, the tenants, who were under no impairment other than their inability to understand English, were there charged with the duty of further inquiry. Accord Tahan v. Hodgson, 662 F.2d 862, 865 (D.C.Cir.1981) (English-speaking person served in Israel with papers written in Hebrew had duty to inquire further); Guerrero v. Carleson, 9 Cal.3d 808, 813, 512 P.2d 833, 836, 109 Cal.Rptr. 201, 204
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_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.
Richard O.J. MAYBERRY, Appellant, v. George PETSOCK, Superintendent.
No. 85-3537.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) May 18, 1987.
Decided June 15, 1987.
Rehearing and Rehearing In Banc Denied July 9, 1987.
Richard O.J. Mayberry, pro se .
Robert E. Colville, Dist. Atty., Kenneth J. Benson, Asst. Dist. Atty., Office of the Dist. Atty., Pittsburgh, Pa., for appellee.
Before SLOVITER, BECKER and GARTH, Circuit Judges.
A brief for appellant was filed by Thomas J. Michael, Pittsburgh, Pa., court appointed counsel. Counsel’s unopposed motion to withdraw thereafter was granted.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Facts
Petitioner Richard O.J. Mayberry appeals from an order of the District Court for the Western District of Pennsylvania dismissing his petition for a writ of habeas corpus for failure to exhaust state remedies. An examination of the lengthy procedural history of this case is necessary to our disposition of this appeal.
On December 9, 1966, following a tumultuous trial in state court in Allegheny County, Pennsylvania, petitioner Mayberry and two co-defendants, Dominick Codispoti and Herbert Langnes, were found guilty by a jury of prison breach and holding hostages in a penal institution, based on acts which occurred while they were Pennsylvania state prisoners. On the day of sentencing, December 12, 1966, Mayberry filed a motion for a new trial which alleged thirty-nine grounds of error. See App. at 158— 162. Although Pennsylvania rules of criminal procedure have been interpreted to require that post-verdict motions be decided before sentencing, Pa.R.Crim.P. 1123 (comment); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 373 (1975), the trial judge, Judge Fiok, proceeded to sentence Mayberry without ruling on his post-trial motion. Mayberry was sentenced to consecutive terms of imprisonment of fifteen to thirty years for hostage holding and five to ten years for prison breach. On the same day, Judge Fiok found Mayberry guilty of eleven counts of criminal contempt of court for his conduct during the trial. Mayberry was sentenced to consecutive terms of imprisonment of eleven to twenty-two years on the contempt charges. The contempt charges were the subject of numerous appeals and are not at issue in the current petition for a writ of habeas corpus.
In addition to his new trial motion filed in the trial court, Mayberry filed a timely appeal on January 12, 1967 to the Pennsylvania Superior Court of his convictions and sentences for prison breach and hostage holding. The record indicates that following the filing of his appeal in January 1967, Mayberry filed seven petitions for continuances in his appeal pending before the Superior Court, the last one granted March 25, 1970, and continuing the appeal until November 1970. App. at 167. In each of the five petitions for continuance that May-berry included in his appendix, there is reference to the pending undecided new trial motion, and all but one petition requested that a continuance be granted in order to allow the new trial motion to be decided before the appeal was decided. App. at 89-112. The Commonwealth did not object to any of the continuances. On November 13, 1970, apparently after the period covered by the last petition for continuance, the Superior Court entered a judgment of non pros on the appeals. No reference to the petitions for continuance or to the pending new trial motion was made in the judgment of non pros. App. at 114-15.
On December 7, 1970, Mayberry filed a petition with the Superior Court to remove the judgment of non pros. The petition alleged that by placing him in solitary confinement and denying him access to legal papers, the state prison authorities interfered with and obstructed his attempt to file a brief or a new petition for a continuance of the pending appeal. App. at 120-21. Mayberry’s petition also stated that his post trial motions had not yet been decided. App. at 119. By letter dated January 27, 1971, from Assistant District Attorney Carol Mary Los (now Judge Mansmann of this court), Mayberry was informed that the Commonwealth had no objection to the removal of the non pros judgment. App. at 80-81. The Superior Court took no action on Mayberry’s petition to remove the judgment of non pros for four years until, on March 12, 1975, it denied the petition without an opinion. App. at 115.
The Commonwealth asserts that Mayberry’s post-trial motions were resolved by an order signed by Judge Fiok on January 27, 1975. The order pointed to by the Commonwealth is titled “Order of Court Nunc Pro Tunc”, states that an earlier Order entered on December 29,1967 “has become lost or misplaced”, and denies the “respective motions” of Mayberry and his co-defendants nunc pro tunc to December 29, 1967. App. at 30-31. Mayberry contends that the nunc pro tunc order was never docketed in the Pennsylvania courts and that he never received a copy of the order.
Mayberry also avers in his habeas corpus petition that he filed a petition with the Pennsylvania trial court for post-conviction relief on October' 9, 1970. The purported petition alleges that Mayberry was prevented by prison officials from pursuing his appeal, that he was prevented from communicating with his attorney, and that he was being prevented by prison officials from proceeding with his new trial motion. App. at 169-74. The Commonwealth asserts that the post-conviction petition was never filed with the Pennsylvania courts.
Mayberry filed a petition for habeas corpus on October 23, 1984 in the United States District Court for the Western District of Pennsylvania alleging five grounds for relief: denial of his due process rights caused by the delay of the trial court in failing to rule on his new trial motion and in failing to rule on his post-conviction petition; denial of his due process rights because the trial court’s failure to rule on the new trial motion and post-conviction petition obstructed his right to appeal; denial of due process by the trial court’s sentencing him prior to ruling on the new trial motion; denial of due process based on the thirty-nine grounds for error alleged in his post-trial motion filed in state court; and denial of due process by state officials’ obstruction of his right to appeal. App. at 9-10. Mayberry’s habeas petition acknowledges that the allegations of unconstitutional delay in ruling on his new trial motion and post-conviction petition and sentencing prior to ruling on the new trial motion claims have not previously been presented to the Pennsylvania courts. He alleges, however, that he has “no available remedy in the state courts.” App. at 9.
The petition for habeas corpus was referred to a magistrate who recommended that the petition be dismissed for failure to exhaust state remedies. The magistrate stated, “there is no doubt that on January 29, 1975, the Court of Common Pleas entered an order in which it held that the order of December 29, 1967 had been lost or misplaced, and directed that the motion for a new trial be denied as of December 29, 1967.” App. at 48. The magistrate concluded that because Mayberry had not appealed that decision, he had failed to exhaust his state remedies. App. at 48-50. With respect to the post-conviction petition, the magistrate credited the Commonwealth’s assertion that no petition was ever filed, and concluded that “even if this were not the case, the fact that almost fifteen years has elapsed since Mayberry alleges he filed the petition, and the fact that the petitioner has not attempted to have the matter resolved, defies belief where an individual such as Mayberry who has extensive experience in the judicial system is the principal litigant.” App. at 50. The district court adopted the magistrate’s Report and Recommendation and dismissed May-berry’s petition. App. at 64.
II.
Exhaustion
As a general rule, a state prisoner must exhaust state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The requirement is not a mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner’s federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). An exception, however, is made where the petitioner has no opportunity to obtain redress in the state court or where the state corrective process is so deficient as to render any effort to obtain relief futile. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam); see also 28 U.S.C. § 2254(b). Mayberry alleges that this exception applies to his petition.
In finding that Mayberry failed to exhaust, the magistrate relied on the undisputed fact that Mayberry failed to appeal the nunc pro tunc order of January 29, 1975 denying his new trial motion. May-berry argues that he could not have appealed from the order denying his new trial motion because neither the order purportedly signed on December 29, 1967 nor the nunc pro tunc order of January 29, 1975 was in fact filed. Mayberry points to the letter from then Assistant District Attorney Carol Mary Los (now Judge Mansmann) dated January 27, 1971, stating that she had been informed by the Clerk of Court’s office that it could not find any record of the disposition of Mayberry’s post-trial motions. App. at 80. Mayberry argues that this letter proves that no order was ever entered in 1967, and that this casts doubt on the 1975 nunc pro tunc order generally. Mayberry argues that the nunc pro tunc order was never docketed in the state courts and that he never received a copy of the order and thus, that he could not have appealed from it.
We note that the district court made no determination that Mayberry’s motion for a new trial was denied on December 29, 1967, as the state court’s order states and as the Commonwealth argued in the district court. The Commonwealth produced no contemporaneous evidence showing entry of such an order. It does not appear on the trial court docket. App. at 116a. Nonetheless, it is irrelevant whether the new trial motion was denied in 1967 if the nunc pro tunc order was filed in 1975 and Mayberry failed to perfect his appeal therefrom. We agree with the Commonwealth that the “Order of Court Nunc Pro Tunc” which is reproduced in the appendix and which is stamped “Received January 30, 1975” by the Chief Minute Clerk Criminal Division in the Court of Common Pleas of Allegheny County is indisputable evidence of the filing of such an order. App. at 31. Moreover the notation “Copies sent” on the order at least places upon Mayberry the burden of proving that a copy was not sent to him.
Mayberry argues that a statement in a footnote of this court’s opinion in Codispoti v. Howard, 589 F.2d at 138 n. 5, suggests otherwise. In that case, we reviewed the procedural history relating to Mayberry’s co-defendant, Codispoti, and concluded that Codispoti’s new trial motion had not been disposed of by the time of our decision in that case. We referred to a letter to Codispoti from the Allegheny County Clerk of Courts dated August 6, 1975 (several months after the nunc pro tunc order), which stated that no disposition had yet been made of Codispoti’s new trial motion. Id. at 138 n. 5. However, there is no suggestion in Codispoti that the Commonwealth argued there, as it does here, that Codispoti’s new trial motion was disposed of by the nunc pro tunc order. The statement in Codispoti, standing alone, is insufficient to overcome the “presumption of regularity” accorded state court proceedings. See Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed.2d 1461 (1938); United States ex rel. McCloud v. Rundle, 402 F.2d 853, 857 (3d Cir.1968), cert. denied, 398 U.S. 929, 90 S.Ct. 1822, 26 L.Ed.2d 92 (1970). See also Ford v. Strickland, 696 F.2d 804, 811 (11th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Accordingly, Mayberry’s failure to appeal from the nunc pro tunc order denying his new trial motion and his failure to appeal from the Superior Court’s denial of his petition to remove the judgment of non pros in his direct appeal would constitute a failure to exhaust state remedies which would bar habeas relief unless Mayberry can show that he was excused from exhaustion.
III.
Allegations of State Obstruction
Mayberry sought to make such a showing by claiming in the district court that he was obstructed by state officials from pursuing his appeal. App. at 9. The Supreme Court has suggested, without elaboration, that failure to exhaust state remedies will not bar federal habeas corpus review where state officials have interfered with a habeas petitioner’s utilization of state remedies. In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the Court so stated first in discussing the petitioners’ failure to appeal (“Of course, federal habeas corpus is allowed where time has expired without appeal when the prisoner is detained without opportunity to appeal because of lack of counsel, incapacity, or some interference by officials. ” Id. at 485-86, 73 S.Ct. at 422 (emphasis added)), and then in discussing the petitioners’ failure to use the state’s remedy for collateral relief (“A failure to use a state’s available remedy, in the absence of some interference or incapacity, such as is referred to [in cases involving denial of counsel], bars federal habeas corpus.” Id. at 487, 73 S.Ct. at 422 (emphasis added)). The Court also suggested last term that “some interference by officials” which “made compliance impractical” would constitute cause, under the cause and prejudice standard to excuse procedural default. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986) (citing Brown v. Allen, 344 U.S. at 486, 73 S.Ct. at 422).
Although several circuits have acknowledged that such “interference” by officials would be a basis for excusing exhaustion of state remedies, see Litchfield v. Tinsley, 281 F.2d 486, 488 (10th Cir.1960), State v. Gladden, 240 F.2d 910, 911-12 (9th Cir. 1957), we have found only one case where a federal court actually proceeded to consider the merits of a state prisoner’s unexhausted claim after finding that it was “the policy of the State administrative authorities to refuse prisoners the right to send petitions to any court.” United States ex rel. Bongiorno v. Ragen, 54 F.Supp. 973, 976 (N.D.Ill.1944), aff'd, 146 F.2d 349 (7th Cir.), cert. denied, 325 U.S. 865, 65 S.Ct. 1194, 89 L.Ed. 1985 (1945). We agree that if a prisoner could establish that the activities of the state authorities made the prisoner’s resort to the state procedures in effect unavailable, exhaustion would be excused.
Mayberry’s petition for a writ of habeas corpus asserts that he did not appeal from the denial of his petition to lift the non pros judgment because “Prison officials obstructed and prevented me from filing appeal briefs and held me incommunicado, and stole my records and files while transferring me from one solitary confinement cell to another all over Pennsylvania.” App. at 9. In the post-conviction petition, which the Commonwealth contends was never filed in state court, Mayberry alleges that “The authorities at the state prison at Huntingdon obstruct me in my right to appeal my convictions by holding me incommunicado from my attorney, withholding my personal legal papers and correspondence.” App. at 171. Mayberry’s petition for habeas corpus alleges as a ground for relief “denial of my right to due process of law by state officials obstruction of my right to appeal as set forth in my post-conviction petition.” App. at 10. Mayberry argued in his Memorandum of Law filed in support of his petition filed in the district court that his direct appeal was obstructed “by the prison authorities holding [me] incommunicado and denying [me my] right of access to the courts.” App. at 180. Similarly, Mayberry alleged in his motion for discovery, not ruled on by the district court, that “the prison authorities at the Western Penitentiary, the State Prison at Huntingdon, the State Prison at Dallas, ... have obstructed petitioner’s right of appeal.” App. at 193. In response to the Commonwealth’s motion to dismiss May-berry’s petition as a delayed petition under Rule 9(a) of the Rules Governing Habeas Corpus cases, Mayberry pointed to “the action of the prison authorities at Western Penitentiary and in the Bureau of Correction of Pa., in confiscating my legal papers and law books, holding me incommunicado, denying me access to the courts, transferring me from one solitary confinement cell to another in prisons all over Pennsylvania, and stealing my records and files.” App. at 38.
IV.
Sufficiency of Allegations
We will assume arguendo that if Mayberry could establish the facts alleged, this would excuse exhaustion. We must decide whether these allegations, many made under penalty of perjury, entitled Mayberry to a hearing, or at least to the discovery he sought in the district court.
As a general rule in dealing with the merits of a petition for habeas corpus, where there are material facts in dispute which if proven would entitle a petitioner to relief and the petitioner has not been afforded a full and fair evidentiary hearing in state court, either at the time of trial or in a collateral proceeding, a federal habeas court must hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Bibby v. Tard, 741 F.2d 26, 30 (3d Cir. 1984). However, “[t]his is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing.” Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 1632, 52 L.Ed.2d 136 (1977). Just as bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing, see Wacht v. Cardwell, 604 F.2d 1245, 1246 n. 2 (9th Cir. 1979), neither do they provide a basis for imposing upon the state the burden of responding in discovery to every habeas petitioner who chooses to seek such discovery. Under Rule 6(a) of the Rules Governing Habeas Corpus Cases Under § 2254 the district court has discretion to decide the extent to which discovery is appropriate. The Advisory Committee Note to Rule 6 makes clear that prior court approval is required to prevent abuse. Moreover, Rule 2(c) of the Rules Governing Habeas Corpus Cases expressly provides in part that the petitioner “shall set forth in summary form the facts supporting each of the grounds” specified in the petition, (emphasis added). Thus, notice pleading is not countenanced in habeas petitions. See Blackledge, 431 U.S. at 75 & n. 7, 97 S.Ct. at 1629 & n. 7 (quoting Advisory Committee Note to Rule 4). Unless the petition itself passes scrutiny, there would be no basis to require the state to respond to discovery requests. See Rule 4 of the Rules Governing Habeas Corpus Cases (“If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal”).
These rules and the judicial interpretation thereof have developed in the context of determinations made on the merits of a habeas petition rather than on whether non-exhaustion can be excused. We see no reason why allegations on the latter issue should be governed by any lesser standard than allegations on the merits. Just as “[h]abeas corpus is not a general form of relief for those who seek to explore their case in search of its existence,” Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir.1970), so also discovery and an evidentiary hearing should not be available to a habeas petitioner who claims relief from the exhaustion rule unless the petitioner sets forth facts with sufficient specificity that the district court may be able, by examination of the allegations and the response, if any, to determine if further proceedings are appropriate. See generally Blackledge v. Allison, 431 U.S. at 81-82 & n. 25, 97 S.Ct. at 1632-33 & n. 25 (citing Moorhead v. United States, 456 F.2d 992, 996 (3d Cir.1972)).
In this case, the record indicates that the Commonwealth did not respond in the district court to Mayberry’s allegation in the petition that he was obstructed from pursuing his appeal. Moreover, the district court did not address Mayberry’s ostensible excuse for failure to exhaust and hence it never considered whether Mayberry’s allegations of obstruction as an excuse for non-exhaustion were sufficiently specific to warrant discovery and/or an evidentiary hearing. We hold that this was error. While a district court may ultimately decide that a petitioner’s allegations of obstruction are not sufficient to create an issue of fact of obstruction as an excuse for failure to exhaust, the court should not ignore such allegations altogether.
Although we could remand for consideration of the allegations of obstruction, since the record before us contains the petition and supporting papers filed in the district court, it will be more efficient if we review them to determine their sufficiency. In this connection, we note in passing that the Commonwealth which answered Mayberry’s attorney’s brief chose not to respond in this court to Mayberry’s pro se brief, filed after his attorney withdrew, in which the allegations of obstruction are made. Thus, this record contains no response by the Commonwealth either in the district court or here to Mayberry’s allegations of obstruction by state officials. Our decision to address the issue does not signify approval of the Commonwealth’s failure to provide us with assistance.
In Mayberry’s habeas petition, his allegations of state obstruction are vague and general. For example, although he contends that the state officials withheld his legal papers, he does not state who withheld such papers, when and where they were withheld, whether those papers consisted of putative appeal papers, or whether they were incoming papers to which he was not given access. Similarly he contends that state officials refused to allow him to prepare or file appeal briefs. Again he states nothing with respect to the identity of the person or persons, and more particularly when this conduct took place. The timing is of particular relevance. All of Mayberry’s exhibits, such as the affidavits of other prisoners, are dated in 1970. Since these were years before the January 29, 1975 nunc pro tunc order, even if they could be viewed as providing some support for his allegations of obstruction, an issue we do not reach, they provide no support for any allegations of obstruction from the dates in 1975 when Mayberry would have been required to appeal from the nunc pro tunc order and from the Superior Court’s order refusing to lift the judgment of non pros in his direct appeal. Mayberry’s allegations that he has been moved in response to the filing of the habeas petition are similarly irrelevant to the issue of his failure to exhaust by appealing from the nunc pro tunc order entered January 29, 1975.
In short, neither Mayberry’s allegations of state obstruction nor the material in the appendix makes a sufficient showing on the exhaustion issue to warrant a court to direct the state to respond to Mayberry’s request for discovery or to embark on an evidentiary hearing. Therefore, although the district court failed to consider the issue, we hold that the district court did not err in its ultimate disposition dismissing Mayberry’s petition for failure to exhaust.
V.
Conclusion
In summary, Mayberry failed to exhaust state remedies in that he failed to appeal from the nunc pro tunc order of January 29, 1975 denying his new trial motion or from the Superior Court’s denial of his petition to remove the judgment of non pros in his direct appeal. We hold that a habeas petitioner may be excused from exhausting state remedies by showing that obstruction by state officials prevented pursuit of those remedies. We also hold, however, that the allegations of exhaustion must be at least as specific with respect to the facts allegedly excusing exhaustion as is required for allegations alleging constitutional deprivation as the basis for the habeas petition. Mayberry’s allegations of obstruction do not rise to the necessary level and for the reasons set forth above, we will affirm the district court’s order of dismissal.
. We have previously described the outrageous conduct of Mayberry and his co-defendants during the course of the trial. See Codispoti v. Howard, 589 F.2d 135, 137-38 (3d Cir.1978).
. The magistrate mentioned, but does not appear to have relied on, Mayberry’s failure to appeal to the Pennsylvania Supreme Court from the Superior Court’s denial of his motion to lift the non pros. Had Mayberry appealed or filed a petition for allocatur to the Pennsylvania Supreme Court alleging the same constitutional violations that he alleged in his petition in the Superior Court, he would have exhausted his state remedies. See Chaussard v. Fulcomer, 816 F.2d 925, 928 (3d Cir. 1987).
. Although not necessarily bearing on Mayberry’s attempts to pursue his appeals after the denial of his new trial motion and petition to remove the judgment of non pros in 1975, we note that Mayberry repeatedly asserted in his petitions for continuance of his appeal in the Superior Court and his petition to remove the judgment of non pros that he was being obstructed by state officials from pursuing his appeals. App. at 108, 112-13, 120.
. The Commonwealth’s answer to Mayberry’s petition states that Mayberry alleged only four grounds as bases for relief. App. at 17-18. It does not mention the fifth ground alleged by Mayberry, "Denial of my right to due process of law by state officials obstruction of my right to appeal as set forth in my postconviction petition." App. at 10. Nor does the Commonwealth’s answer respond to Mayberry’s explanation for his failure to appeal the adverse action on his petition to remove the judgment of non pros that, "prison officials obstructed and prevented me from filing appeal briefs and held me incommunicado and stole my records and files while transferring me from one solitary confinement cell to another all over Pennsylvania.” App. at 9.
. Some of the material included in Mayberry’a appendix, which was allegedly attached to various petitions, is of questionable legitimacy. For example, he included as Exhibit 1 to his petition to the Superior Court to remove the judgment of non pros, "a photocopy of a letter dated November 10, 1970 written by the Honorable Frederick B. Smillie to the Secretary of Welfare of Pennsylvania.” See App. at 121. We note, however, that this alleged "photocopy” does not contain any letterhead or signature. See App. at 125A. Even if we were to assume that the letter was legitimate, its date makes it irrelevant for consideration for the purpose of our inquiry, i.e. failure to exhaust after January 29, 1975.
. We need not reach the dispute between May-berry and the Commonwealth over whether a post-conviction petition for relief was filed. The magistrate’s report states, "despite the petitioner’s allegations to the contrary, the records of the Clerk of the Common Pleas Court, do not contain any showing that a post-conviction [petition] was ever filed by the petitioner,” App. at 50. Even if Mayberry had filed a post-conviction petition in 1970, as he alleges, the state court's failure to rule on that could not excuse Mayberry from falling to appeal from the 1975 nunc pro tunc order. Because Mayberry’s allegations with respect to state obstruction vis-a-vis his alleged post-conviction petition are no more specific than the similar allegations regarding his failure to appeal the other orders, his filing of such a petition vel non would not affect the disposition of this appeal.
We have considered and rejected, either on the merits or as not relevant, all the remaining arguments raised in Mayberry’s brief. We note however that Mayberry’s contention that the district court erred in failing to permit him to expand the record is moot, since we have reviewed all of the items included in his pro se appendix in the course of our de novo consideration.
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_direct1 | C | 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.
NEW YORK LIFE INS. CO. v. MILLER.
No. 12680.
Circuit Court of Appeals, Eighth Circuit.
Jan. 12, 1944.
Ferdinand II. Pease, of New York City, Virgil Willis, of Harrison, Ark., and A. F. House, of Little Rock, Ark., for appellant.
No appearance for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
PER CURIAM.
This action was brought in a state court of Arkansas by the appellee, Dora Miller, a resident of that State, against the appellant, to recover upon a policy of life insurance in which she was the beneficiary. The policy was issued in January, 1930, by the appellant, a life insurance company of New York, to Flora M. Maddox, later Flora M. Dillon, a citizen of California, who died in December, 1941, while the policy was in force. The appellant removed the case to the United States District Court for the Western District of Arkansas, and by answer and cross-complaint converted it into an action in interpleader, with Dora Miller (the appellee), Carl Maddox, the first husband of Flora M. Dillon, the insured, (from whom she had been divorced September 9, 1931), and Claude Dillon, her second husband, as adverse claimants. In its answer the appellant admitted its liability under the policy, but asserted its inability to determine whether all premiums were paid by the insured or whether Carl Maddox and Claude Dillon, named as cross-defendants, contributed to the payment of premiums. In its cross-complaint the appellant asserted that it had deposited the amount due upon the policy in the registry of the court; that there were two or more adverse claimments, citizens of different states, who claimed to be entitled to the money, namely, Dora Miller, a citizen of Arkansas, Carl Maddox, a citizen of Colorado, and Claude Dillon, a citizen of California; that Carl Maddox claimed that his' individual and community funds were used in the payment of premiums on the policy and that he was entitled to a community interest in the proceeds of the policy; that Claude Dillon made a similar claim; and that the appellant could not, with safety to its own interest,- recognize any of the conflicting claims. The prayer of the cross-complaint was for a determination of the rights of the appellee and the cross-defendants to the fund paid into court, for an injunction against the bringing of other suits upon the policy, and for an allowance of costs and an attorneys’ fee.
Upon the filing of the appellant’s answer and cross-complaint, the court entered an order for the service of process on the cross-defendants, Maddox and Dillon, and enjoining them from prosecuting other suits upon the policy. Maddox filed a disclaimer, and Dillon failed to answer. The appellee moved for judgment by default against Dillon and for a judgment against the appellant for the amount due under the policy, and, in addition, for the 12 per cent penalty and attorney’s fees provided by the statute of Arkansas in cases in which an insurance company has failed to pay the amount due upon a policy within the time specified in the policy. Section 7670 of the 1942 Supp. to Pope’s Digest of the Statutes of Arkansas 1937. The court entered judgment against the appellant as prayed for by the appellee, including in the judgment the statutory penalty and an attorney’s fee of $300, and required that the fund in the registry of the court be turned over to counsel for the appellee and be credited upon the judgment against the appellant. The court denied the appellant’s request for an allowance for attorneys’ fees. .This appeal is from the judgment.
The appellant contends that the court erred (1) in including the statutory penalty and attorney’s fees in the judgment, and (2) in denying an allowance of attorneys’ fees to the appellant.
The parties to the policy in suit were a citizen of California and a corporation of New York. The policy was payable in New York, was delivered in California, and matured in that State. In Business Men’s Accident Ass’n of America v. Cowden, 131 Ark. 419, 199 S.W. 108, 112, the Supreme Court of Arkansas held that the statute providing for the 12 per cent penalty and a reasonable attorney’s fee “was not intended to penalize a company for policies which were written and which matured in another state.” The Supreme Court of the United States ruled in Ætna Life Ins. Co. v. Dunken, 266 U.S. 389, 399, 45 S.Ct. 129, 69 L.Ed. 342, that such a state statute cannot constitutionally be applied to contracts made by citizens of other states. The Arkansas statute upon which the District Court relied in awarding to the appellee the statutory penalty and attorney’s fee is not applicable to the policy in suit. No such penalty or attorney’s fee should have been included in the judgment appealed from.
We think that the appellant was entitled to an allowance for attorneys’ fees out of the fund deposited in the registry of the court. The record discloses that the appellant was a disinterested stakeholder acting in good faith and on the advice of counsel, and that it had resisted payment of the appellee’s claim only for the purpose of protecting itself against the claims of Maddox and Dillon, from whom the appellee had not been able to procure disclaimers. The Interpleader Act of 1936, 49 Stat. 1096, 28 U.S.C.A. § 41(26) (e), authorizes the procedure which the appellant adopted to protect itself against the danger of multiple liability and to convert the appellee’s action upon the policy into a suit in inter-pleader. It is not conceivable to us that it makes any difference whether a disinterested stakeholder who is entitled to avail himself of the remedy of interpleader brings a separate suit and enjoins the claimants from bringing or proceeding with other actions, or whether he accomplishes exactly the 'same result by the means selected by the appellant in the instant case. If the appellant had brought an independent suit in interpleader, it would have been entitled to an allowance for attorneys’ fees to be determined by the District Court and paid out of the fund in Court. Mutual Life Ins. Co. v. Bondurant, 6 Cir., 27 F.2d 464, 466; Hunter v. Federal Life Ins. Co., 8 Cir., 111 F.2d 551, 557. There is no reason to penalize the appellant because it accomplished the same result in a different, but entirely legitimate, way. The amount to be allowed the appellant by the District Court as an attorneys’ fee should not exceed what would have been allowed had the suit been an independent suit in interpleader.
The case is remanded with directions to modify the judgment in accordance with this opinion. When so modified, the judgment will stancj affirmed. The costs of this appeal will be charged to the appellee.
See, also, Inter-Ocean Casualty Co. v. Warfield, 173 Ark. 287, 292 S.W. 129.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
OBER et al. v. WHITE (two cases).
(Circuit Court of Appeals, Third Circuit.
March 3, 1926.
Rehearing Denied April 7, 1926.)
Nos. 3394, 3395.
1. Corporations <@=560(4) — Receivers of mortgage company, creature of Ohio corporation, held not entitled to recover from receivers of Pennsylvania corporation, another creature of Ohio corporation, for stock of mortgage company sold hy Pennsylvania corporation, which had made full accounting to Ohio corporation.
“Where, in pursuance of operations defrauding public in sale of stock, Ohio corporation had its creature, a Pennsylvania corporation, unload stock of mortgage company, another of its creatures, held, that receivers of mortgage company, after appointment of receivers for all companies, have no right to fund in hands of receivers of Pennsylvania corporation, with whom it had no contractual or trust relation, which cannot be traced to stock subscriptions, particularly since Pennsylvania corporation had more than fully accounted to Ohio corporation for all moneys received by it from sale of such stock.
2. Corporations <©=560(4) — Mortgage company’s receivers were entitled to return of fund forwarded to corporation selling its stock for purpose of paying dividends thereon; such fund having been deposited in special fund, and so remaining until receivership of both companies.
Where fund for.warded to Pennsylvania corporation engaged in selling stock of mortgage company, for specific purpose of paying dividends on mortgage company’s stock was deposited in special fund, so remaining until receivership of both companies, mortgage company’s receivers were entitled to such fund.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Separate suits by Franklin S. Zelly and others against the R. L. Dollings Company of Pennsylvania and others for the appointment of a receiver, wherein Thomas Raeburn “White was appointed receiver, and by the Crane Ice Cream Company against Thomas Raeburn White, receiver of the R. L. Dollings Company of Pennsylvania to reclaim moneys, wherein cross-bill was filed on behalf of the International Note & Mortgage Company also asserting a reclamation claim, for whom Thomas K. Ober, Jr., and another, were substituted as plaintiffs in cross-bill, on their appointment as ancillary receivers of the International Note & Mortgage Company. From decrees in each ease denying the claims of Thomas K. Ober, Jr., and another, ancillary receivers of the International Note & Mortgage Company, they appeal.
Affirmed in part, and reversed in part.
Ulric J. Mengert, William E. Mikell, Jr., Albert Smith Faught, and J. Hector MeNeal, all of Philadelphia, Pa., Henry A. Williams, of Columbus, Ohio, and Maurice B. Saul and Owen J. Roberts, both of Philadelphia, Pa., for appellants.
Francis F. Burch, Percival H. Granger, and Thos. Raeburn White, all of Philadelphia, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges.
Certiorari denied 46 S. Ct. 630, 70 L. Ed. —.
BUFFINGTON, Circuit Judge.
This case involves the distribution of two different funds in the hands of the receivers of the R. L. Dollings Company, a corporation of Pennsylvania. The first fund, some $500,-000, is the proceeds of the assets of that company, and was in no way earmarked or connected with any trust. Without entering into a detailed description of the Dollings operations, it suffices to say that all the companies here involved were links in a chain of corporations whose purpose and successful sphere of operations was defrauding the public in the sale of stocks. In the course of these fraudulent operations, the Dollings Company of Ohio had its corporate creature, the Dollings Company of Pennsylvania, unload on the public the stock of the International Note & Mortgage Company of Ohio, another of its corporate creatures. The Pennsylvania Company so sold, and thereby became accountable to the Dollings Company of Ohio for some $500,000, when the receivership of all these companies came about. But it also appeared that during these transactions the Dollings Company of Ohio had received advances,, or otherwise become accountable to the Pennsylvania Dollings Company, to an amount largely in excess of this $500,000. The situation is summarized by the court below as follows:
“The basis of the claim in either of its -aspects is a fact. The master disposes of the fact respecting the trust fund by finding that there is no fund earmarked or otherwise which can be traced to these stock subscriptions. He disposes of the debt claim by his finding that the Pennsylvania Dollings Company had no contractual or trust relations or relations of any kind with the International Company. The only dealings it had and the only relations it sustained were with the Dollings Company of Ohio. For the latter company the Pennsylvania Company, it is true, sold stock, but it had not only fully but had overaccounted for all moneys received, so that when the crash cama the state of accounts between them stood in favor of the Pennsylvania Company in a sum of approximately $1,000,000. It is likewise true that moneys which represented proceeds from the sale of the International Company stock were included in what the Pennsylvania Company received. These moneys, however, belonged, so far as concerned the Pennsylvania Company, to the Ohio Company, to which they were not only paid, but overpaid. There was in consequence no indebtedness of the Pennsylvania Company to the International Company, or to any one, for that matter, which arose. The transaction was that of an underwri.tr ing of an issue of stock of the International Company by the Ohio Company, the issue of the stock to the latter company for the purposes of the underwriting 'agreement, the sale of shares to investors, who thereby became stockholders of the International, the deposit with the Pennsylvania Company of some of the money from these sales to the credit and order of the Ohio Company, and the overpayment of the moneys to the Ohio Company.”
Without entering into further details, we limit ourselves to saying that we agree with the findings of fact, concurred in by court and master, and with the conclusion drawn therefrom, that the International Note & Mortgage Company has -shown no right to the sum in question. We therefore dismiss its appeal, and affirm the decree below, in so far as it disallows the claim of the receivers of the International Note & Mortgage Company to $501,676, the balance alleged to be due on account of stock of the International Note & Mortgage Company sold by the Pennsylvania Dollings Company.
We next consider the claim of the receivers of the International Note & Mortgage Company to a fund of $17,707, which the court below disallowed. In this we are of opinion the court erred, and its decree in that respect must be reversed, and the fund ordered paid to said receivers. Our reasons therefor are that the money was sent by the Dollings Company of Ohio to the Dollings Company of Pennsylvania, for the specific purpose of paying a dividend which it was intended to make on the stock of the International Note & Mortgage Company. When received by the Pennsylvania Company, it was not mingled with its funds, but was deposited in a special fund, and so remained until the receivership. Not having been applied to its designated purpose when the receivership came, we are unable to see by what means or in what manner any ownership of this trust fund accrued to the Pennsylvania Company. It came into the possession of the court, through its receiver, as an earmarked fund, which the court, on it being impossible to carry out the trust, should return to the source from which it came. Having been designated, when sent, as applicable to the affairs of the International Note & Mortgage Company, and there is no one else claiming or showing a title to it, we are of opinion that this court should carry out, as far as now possible, the trust under which it was received, by now ordering it paid to the receivers of the International Note & Mortgage Company.
The decree below will therefore be modified, by the approval of the claim of the International Note & Mortgage Company to this $17,707-, and directing the receivers of the Pennsylvania Company to transfer and pay the same to the receivers of the International Note & Mortgage Company.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
sc_authoritydecision | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
VANCE, SECRETARY OF STATE v. TERRAZAS
No. 78-1143.
Argued October 30, 1979
Decided January 15, 1980
White, J., delivered the opinion of the Court, in which Burger, C. J., and BlackmuN, Powell, and RehNquist, JJ., joined. Marshall, J., post, p. 270, and Stevens, J., post, p. 272, filed opinions concurring in part and dissenting in part. Brennan, J., filed a dissenting opinion, in Part II of which Stewart, J., joined, post, p. 274. Stewart, J., filed a dissenting statement, post, p. 270.
Allan A. Ryan, Jr., argued the cause for appellant. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Getter, William G. Otis, and William C. Brown.
Kenneth K. Ditkowsky argued the cause and filed a brief for appellee.
Mr. Justice White
delivered the opinion of the Court.
Section 349 (a) (2) of the Immigration and Nationality Act (Act), 66 Stat. 267, 8 U. S. C. § 1481 (a)(2), provides that “a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by . . . taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof.” The Act also provides that the party claiming that such loss of citizenship occurred must “establish such claim by a preponderance of the evidence” and that the voluntariness of the expatriating conduct is rebuttably presumed. § 349 (c), as added, 75 Stat. 656, 8 U. S. C. § 1481 (c). The issues in this case are whether, in establishing loss of citizenship under § 1481 (a)(2), a party must prove an intent to surrender United States citizenship and whether the United States Constitution permits Congress to legislate with respect to expatriation proceedings by providing the standard of proof and the statutory presumption contained in § 1481 (c).
I
Appellee, Laurence J. Terrazas, was born in this country, the son of a Mexican citizen. He thus acquired at birth both United States and Mexican citizenship. In the fall of 1970, while a student in Monterrey, Mexico, and at the age of 22, appellee executed an application for a certificate of Mexican nationality, swearing “adherence, obedience, and submission to the laws and authorities of the Mexican Republic” and “expressly renouncing] United States citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of the United States of America. . . .” App. to Brief for Appellant 5a. The certificate, which issued upon this application on April 3, 1971, recited that Terrazas had sworn adherence to the United Mexican States and that he “has expressly renounced all rights inherent to any other nationality, as well as all submission, obedience, and loyalty to any foreign government, especially to those which have recognized him as that national.” Id., at 8a. Terrazas read and understood the certificate upon receipt. App. to Juris. Statement 21a.
A few months later, following a discussion with an officer of the United States Consulate in Monterrey, proceedings were instituted to determine whether appellee had lost his United States citizenship by obtaining the certificate of Mexican nationality. Appellee denied that he had, but in December 1971 the Department of State issued a certificate of loss of nationality. App. to Brief for Appellant 31a. The Board of Appellate Review of the Department of State, after a full hearing, affirmed that appellee had voluntarily renounced his United States citizenship. App. to Juris. Statement 31a. As permitted by § 360 (a) of the Act, 66 Stat. 273, 8 U. S. C. § 1603 (a), appellee then brought this suit against the Secretary of State for a declaration of his United States nationality. Trial was de novo.
The District Court recognized that the first sentence of the Fourteenth Amendment, as construed in Afroyim v. Rusk, 387 U. S. 253, 268 (1967), “ 'protect[s] every citizen of this Nation against a congressional forcible destruction of his citizenship’ ” and that every citizen has “ ‘a constitutional right to remain a citizen . . . unless he voluntarily relinquishes that citizenship.’ ” App. to Juris. Statement 25a. A person of dual nationality, the District Court said, "will be held to have expatriated himself from the United States when it is shown that he voluntarily committed an act whereby he unequivocally renounced his allegiance to the United States.” Ibid. Specifically, the District Court found that appellee had taken an oath of allegiance to Mexico, that he had “knowingly and understandingly renounced allegiance to the United States in connection with his Application for a Certificate of Mexican Nationality,” id., at 28a, and that “[t]he taking of an oath of allegiance to Mexico and renunciation of a foreign country [sic] citizenship is a condition precedent under Mexican law to the issuance of a Certificate of Mexican Nationality.” Ibid. The District Court concluded that the United States had “proved by a preponderance of the evidence that Laurence J. Terrazas knowingly, understandingly and voluntarily took an oath of allegiance to Mexico, and concurrently renounced allegiance to the United States,” id., at 29a, and that he had therefore “voluntarily relinquished United States citizenship pursuant to § 349 (a) (2) of the . . . Act.” Ibid.
In its opinion accompanying its findings and conclusions, the District Court observed that appellee had acted “voluntarily in swearing allegiance to Mexico and renouncing allegiance to the United States,” id., at 25a, and that appellee “knew he was repudiating allegiance to the United States through his actions.” Ibid. The court also said, relying upon and quoting from United States v. Matheson, 400 F. Supp. 1241, 1245 (SDNY 1975), aff’d, 532 F. 2d 809 (CA2), cert. denied, 429 U. S. 823 (1976), that “the declaration of allegiance to a foreign state in conjunction with the renuncia-tory language of United States citizenship ‘would leave no room for ambiguity as to the intent of the applicant.’ ” App. to Juris. Statement 23a.
The Court of Appeals reversed. 577 F. 2d 7 (1978). As the Court of Appeals understood the law — and there appears to have been no dispute on these basic requirements in the Courts of Appeals — the United States had not only to prove the taking of an oath to a foreign state, but also to demonstrate an intent on appellee’s part to renounce his United States citizenship. The District Court had found these basic elements to have been proved by a preponderance of the evidence; and the Court of Appeals observed that, “[a]ssuming that the proper [evidentiary] standards were applied, we are convinced that the record fully supports the court’s findings.” Id., at 10. The Court of Appeals ruled, however, that under Ajroyim v. Busk, supra, Congress had no power to legislate the evidentiary standard contained in § 1481 (c) and that the Constitution required that proof be not merely by a preponderance of the evidence, but by “clear, convincing and unequivocal evidence.” 577 F. 2d, at 11. The case was remanded to the District Court for further proceedings.
The Secretary took this appeal under 28 U. S. C. § 1252. Because the invalidation of § 1481 (c) posed a substantial constitutional issue, we noted probable jurisdiction. 440 U. S. 970.
II
The Secretary first urges that the Court of Appeals erred in holding that a “specific intent to renounce U. S. citizenship” must be proved “before the mere taking of an oath of allegiance could result in an individual’s expatriation.” 577 F. 2d, at 11. His position is that he need prove only the voluntary commission of an act, such as swearing allegiance to a foreign nation, that “is so inherently inconsistent with the continued retention of American citizenship that Congress may accord to it its natural consequences, i. e., loss of nationality.” Brief for Appellant 24. We disagree.
In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that § 401 (e) of the Nationality Act of 1940, 54 Stat. 1168—1169, which provided that an American citizen “shall lose his nationality by . . . [vjoting in a political election in a foreign state,” contravened the Citizenship Clause of the Fourteenth Amendment. Afroyim was a naturalized American citizen who lived in Israel for 10 years. While in that nation, Afroyim voted in a political election. He in consequence was stripped of his United States citizenship. Consistently with Perez v. Brownell, 356 U. S. 44 (1958), which had sustained § 401 (e), the District Court affirmed the power of Congress to expatriate for such conduct regardless of the citizen’s intent to renounce his citizenship. This Court, however, in overruling Perez, “reject[ed] the idea . . . that, aside from the Fourteenth Amendment, Congress has any general power, express or implied, to take away an American citizen’s citizenship without his assent.” Afroyim v. Rusk, supra, at 257. The Afroyim opinion continued: § 1 of the Fourteenth Amendment is “most reasonably . . . read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it.” 387 U. S., at 262.
The Secretary argues that Afroyim does not stand for the proposition that a specific intent to renounce must be shown before citizenship is relinquished. It is enough, he urges, to establish one of the expatriating acts specified in § 1481 (a) because Congress has declared each of those acts to be inherently inconsistent with the retention of citizenship. But Afroyim emphasized that loss of citizenship requires the individual’s “assent,” 387 u. S., at 257, in addition to his voluntary commission of the expatriating act. It is difficult to understand that “assent” to loss of citizenship would mean anything less than an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from proved conduct. Perez had sustained congressional power to expatriate without regard to the intent of the citizen to surrender his citizenship. Afroyim overturned this proposition. It may be, as the Secretary maintains, that a requirement of intent to relinquish citizenship poses substantial difficulties for the Government in performance of its essential task of determining who is a citizen. Nevertheless, the intent of the Fourteenth Amendment, among other things, was to define citizenship; and as interpreted in Afroyim, that definition cannot coexist with a congressional power to specify acts that work a renunciation of citizenship even absent an intent to renounce. In the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct.
The Secretary argues that the dissent in Perez, which it is said the Court’s opinion in Afroyim adopted, spoke of conduct so contrary to undivided allegiance to this country that it could result in loss of citizenship without regard to the intent of the actor and that “assent” should not therefore be read as a code word for intent to renounce. But Afroyim is a majority opinion, and its reach is neither expressly nor implicitly limited to that of the dissent in Perez. Furthermore, in his Perez dissent, Mr. Chief Justice Warren, in speaking of those acts that were expatriating because so fundamentally inconsistent with citizenship, concluded by saying that in such instances the “Government is simply giving formal recognition to the inevitable consequence of the citizen’s own voluntary surrender of his citizenship.” Perez v. Brownell, supra, at 69. This suggests that the Chief Justice’s conception of “actions in derogation of undivided allegiance to this country,” 356 U. S., at 68, in fact would entail an element of assent.
In any event, we are confident that it would be inconsistent with Afroyim to treat the expatriating acts specified in § 1481 (a) as the equivalent of or as conclusive evidence of the indispensable voluntary assent of the citizen. “Of course,” any of the specified acts “may be highly persuasive evidence in the particular case of a purpose to abandon citizenship.” Nishikawa v. Dulles, 356 U. S. 129, 139 (1958) (Black, J., concurring). But the trier of fact must in the end conclude that the citizen not only voluntarily committed the expatriating act prescribed in the statute, but also intended to relinquish his citizenship.
This understanding of Afroyim is little different from that expressed by the Attorney General in his 1969 opinion explaining the impact of that case. 42 Op. Atty. Gen. 397. An “act which does not reasonably manifest an individual’s transfer or abandonment of allegiance to the United States,” the Attorney General said, “cannot be made a basis for expatriation.” Id., at 400. Voluntary relinquishment is “not confined to a written renunciation,” but “can also be manifested by other actions declared, expatriative under the [A]ct, if such actions are in derogation of allegiance to this country.” Ibid. Even in these cases, however, the issue of intent was deemed by the Attorney General to be open; and, once raised, the burden of proof on the issue was on the party asserting that expatriation had occurred. Ibid. “In- each case,” the Attorney General stated, “the administrative authorities must make a judgment, based on all the evidence, whether the individual comes within the terms of an expatriation provision and has in fact voluntarily relinquished his citizenship.” Id., at 401. It was under this advice, as the Secretary concedes, that the relevant departments of the Government have applied the statute and the Constitution to require an ultimate finding of an intent to expatriate. Brief for Appellant 56-57, n. 28.
Accordingly, in the case now before us, the Board of Appellate Review of the State Department found that appellee not only swore allegiance to Mexico, but also intended to abandon his United States citizenship: “In consideration of the complete record, we view appellant’s declaration of allegiance to Mexico and his concurrent repudiation of any and all submission, obedience, and loyalty to the United States as compelling evidence of a specific intent to relinquish his United States citizenship.” App. to Juris. Statement 50a. This same view — that expatriation depends on the will of a citizen as ascertained from his words and conduct — was also reflected in the United States’ response to the petition for certiorari in United States v. Matheson, 532 F. 2d 809, cert. denied, 429 U. S. 823 (1976). Insofar as we are advised, this view remained the official position of the United States until the appeal in this case.
As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship. The submission of the United States is inconsistent with this holding, and we are unprepared to reconsider it.
Ill
With respect to the principal issues before it, the Court of Appeals held that Congress was without constitutional authority to prescribe the standard of proof in expatriation proceedings and that the proof in such cases must be by clear and convincing evidence rather than by the preponderance standard prescribed in § 1481 (c). We are in fundamental disagreement with these conclusions.
In Nishikawa v. Dulles, 356 U. S. 129 (1958), an American-born citizen, temporarily in Japan, was drafted into the Japanese Army. The Government later claimed that, under § 401 (c) of the Nationality Act of 1940, 54 Stat. 1169, he had expatriated himself by serving in the armed forces of a foreign nation. The Government agreed that expatriation had not occurred if Nishikawa’s army service had been involuntary. Nishikawa contended that the Government had to prove that his service was voluntary, while the Government urged that duress was an affirmative defense that Nishikawa had the burden to prove by overcoming the usual presumption of voluntariness. This Court held the presumption unavailable to the Government and required proof of a voluntary expatriating act by clear and convincing evidence.
Section 1481 (c) soon followed; its evident aim was to supplant the evidentiary standards prescribed by Nishikawa. The provision “sets up rules of evidence under which the burden of proof to establish loss of citizenship by preponderance of the evidence would rest upon the Government. The presumption of voluntariness under the proposed rules of evidence, would be rebuttable — similarly—by preponderance of the evidence. . . H. R. Rep. No. 1086, 87th Cong., 1st Sess., 41 (1961).
We see no basis for invalidating the evidentiary prescriptions contained in § 1481 (c). Nishikawa was not rooted in the Constitution. The Court noted, moreover, that it was acting in the absence of legislative guidance. Nishikawa v. Dulles, supra, at 135. Nor do we agree with the Court of Appeals that, because under Afroyim Congress is constitutionally devoid of power to impose expatriation on a citizen, it is also without power to prescribe the evidentiary standards to govern expatriation proceedings. 577 F. 2d, at 10. Although § 1481 (c) had been law since 1961, Afroyim did not address or advert to that section; surely the Court would have said so had it intended to construe the Constitution to exclude expatriation proceedings from the traditional powers of Congress to prescribe rules of evidence and standards of proof in the federal courts. This power, rooted in the authority of Congress conferred by Art. 1, § 8, cl. 9, of the Constitution to create inferior federal courts, is undoubted and has been frequently noted and sustained. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 31 (1976); Hawkins v. United States, 358 U. S. 74, 78 (1958); Tot v. United States, 319 U. S. 463, 467 (1943).
We note also that the Court’s opinion in Ajroyim was written by Mr. Justice Black who, in concurring in Nishikawa, said that the question whether citizenship has been voluntarily relinquished is to be determined on the facts of each case and that Congress could provide rules of evidence for such proceedings. Nishikawa v. Dulles, supra, at 139. In this respect, we agree with Mr. Justice Black; and since Congress has the express power to enforce the Fourteenth Amendment, it is untenable to hold that it has no power whatsoever to address itself to the manner or means by which Fourteenth Amendment citizenship may be relinquished.
We are unable to conclude that the specific evidentiary standard provided by Congress in § 1481 (c) is invalid under either the Citizenship Clause or the Due Process Clause of the Fifth Amendment. It is true that in criminal and involuntary commitment contexts we have held that the Due Process Clause imposes requirements of proof beyond a preponderance of the evidence. Mullaney v. Wilbur, 421 U. S. 684 (1975); Addington v. Texas, 441 U. S. 418 (1979). This Court has also stressed the importance of citizenship and evinced a decided preference for requiring clear and convincing evidence to prove expatriation. Nishikawa v. United States, supra. But expatriation proceedings are civil in nature and do not threaten a loss of liberty. Moreover, as we have noted, Nishikawa did not purport to be a constitutional ruling, and the same is true of similar rulings in related areas. Woodby v. INS, 385 U. S. 276, 285 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118, 125 (1943) (denaturalization). None of these cases involved a congressional judgment, such as that present here, that the preponderance standard of proof provides sufficient protection for the interest of the individual in retaining his citizenship. Contrary to the Secretary's position, we have held that expatriation requires the ultimate finding that the citizen has committed the expatriating act with the intent to renounce his citizenship. This in itself is a heavy burden, and we cannot hold that Congress has exceeded its powers by requiring proof of an intentional expatriating act by a preponderance of evidence.
IV
The Court of Appeals did not discuss separately the validity of the statutory presumption provided in § 1481 (c). By holding that the section was beyond the power of Congress, however, and by requiring that the expatriating act be proved voluntary by clear and convincing evidence, the Court of Appeals effectively foreclosed use of the § 1481 (c) presumption of voluntariness, not only in the remand proceedings in the District Court, but also in other expatriation proceedings in that Circuit. As we have indicated, neither the Citizenship Clause nor Afroyim places suits such as this wholly beyond the accepted power of Congress to prescribe rules of evidence in federal courts. We also conclude that the presumption of voluntariness provided in § 1481 (c) is not otherwise constitutionally infirm.
Section 1481 (c) provides in relevant part that “any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.” In enacting § 1481 (c), Congress did not dispute the holding of Nishikawa that the alleged expatriating act — there, service in a foreign army — must be performed voluntarily, but it did insist that the Government have the benefit of the usual presumption of voluntariness and that one claiming that his act was involuntary make out his claim of duress by a preponderance of the evidence.
It is important at this juncture to note the scope of the statutory presumption. Section 1481 (c) provides that any of the statutory expatriating acts, if proved, are presumed to have been committed voluntarily. It does not also direct a presumption that the act has been performed with the intent to relinquish United States citizenship. That matter remains the burden of the party claiming expatriation to prove by a preponderance of the evidence. As so understood, we cannot invalidate the provision.
The majority opinion in Nishikawa referred to the “ordinary rule that duress is a matter of affirmative defense” to be proved by the party claiming the duress. Nishikawa v. Dulles, 356 U. S., at 134. Justices Frankfurter and Burton, concurring in the result, also referred to the “ordinarily controlling principles of evidence [that] would suggest that the individual, who is peculiarly equipped to clarify an ambiguity in the meaning of outward events, should have the burden of proving what his state of mind was.” Id., at 141. And Mr. Justice Harlan, in dissent with Mr. Justice Clark, pointed to the “general rule that consciously performed acts are presumed voluntary” and referred to Federal Rule of Civil Procedure 8 (c), which treats duress as a matter of affirmative defense. 356 U. S., at 144. Yet the Court in Nishikawa, because it decided that “the consequences of denationalization are so drastic” and because it found nothing indicating a contrary result in the legislative history of the Nationality Act of 1940, held that the Government must carry the burden of proving that the expatriating act was performed voluntarily. Id., at 133-138.
Section 1481 (c), which was enacted subsequently, and its legislative history, H. R. Rep. No. 1086, 87th Cong., 1st Sess., 40-41 (1961), make clear that Congress preferred the ordinary rule that voluntariness is presumed and that duress is an affirmative defense to be proved by the party asserting it. See Hartsville Oil Mill v. United States, 271 U. S. 43, 49-50 (1926); Towson v. Moore, 173 U. S. 17, 23-24 (1899); Savage v. United States, 92 U. S. 382, 387-388 (1876). “Duress, if proved, may be a defence to an action . . . but the burden of proof to establish the charge ... is upon the party making it. . . Mason v. United States, 17 Wall. 67, 74 (1873) , The rationality of the procedural rule with respect to claims of involuntariness in ordinary civil cases cannot be doubted. To invalidate the rule here would be to disagree flatly with Congress on the balance to be struck between the interest in citizenship and the burden the Government must assume in demonstrating expatriating conduct. It would also consti-tutionalize that disagreement and give the Citizenship Clause of the Fourteenth Amendment far more scope in this context than the relevant circumstances that brought the Amendment into being would suggest appropriate. Thus we conclude that the presumption of voluntariness included in § 1481 (e) has continuing vitality.
V
In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor. If he succeeds, there can be no expatriation. If he fails, the question remains whether on all the evidence the Government has satisfied its burden of proof that the expatriating act was performed with the necessary intent to relinquish citizenship.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Mr. Justice Stewart dissents for the reasons stated in Part II of Mr. Justice Brennan’s dissenting opinion, which he joins.
The relevant statutory provisions are §§ 349 (a) (2), (c) of the Act, 66 Stat. 267, as amended, 75 Stat. 656, as set forth in 8 U. S. C. § 1481:
“(a) From and after the effective date of this chapter a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by—
“(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof;
“(c) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Except as otherwise provided in subsection (b) of this section, any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.”
The application contained the following statement:
“I therefore hereby expressly renounce. citizenship, as well as any submission, obedience, and loyalty to any foreign government, especially to that of ., of which I might have been subject, all protection foreign to the laws and authorities of Mexico, all rights which treaties or international law grant to foreigners; and furthermore I swear adherence, obedience, and submission to the laws and authorities of the Mexican Republic.”
The blank spaces in the statement were filled in with the words “Estados Unidos” (United States) and “Norteamérica” (North America), respectively. Brief for Appellant 4.
The Fourteenth Amendment, § 1, reads: “All persons bom or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
In remanding the case to the District Court, the Court of Appeals did not “necessarily requir[e] that court to conduct a new trial.” 577 F. 2d, at 12. The Court of Appeals recognized that, even granting the higher standard of proof it had imposed on the District Court, the factual determinations already on the record might be adequate to permit consideration of the case on remand without the holding of another trial or evidentiary hearing. Ibid.
The Court of Appeals’ discussion of specific intent is submerged in its analysis of proper evidentiary standards. Id., at 11. The absence of independent analysis undoubtedly resulted from the Secretary’s failure to contend in either the District Court or the Court of Appeals that it was unnecessary to prove an intent to relinquish citizenship. Indeed, the jurisdictional statement filed by the Secretary in this Court presented the single question whether 8 U. S. C. § 1481 (c) is unconstitutional under the Citizenship Clause of the Fourteenth Amendment; it did not present separately the question whether proof of a specific intent to relinquish is essential to expatriation.
Our Rule 15 (1) (c) states that “[o]nly the questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court.” The Secretary now argues that resolution of the intent issue is an essential, or at least an advisable, predicate to an intelligent resolution of the constitutionality of §1481 (c). There is some merit in this position: arguably the intent issue is fairly comprised in the question set forth in the jurisdictional statement. In any event, consideration of issues not present in the jurisdictional statement or petition for certiorari and not presented in the Court of Appeals is not beyond our power, and in appropriate circumstances we have addressed them. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320, n. 6 (1971); Erie R. Co. v. Tompkins, 304 U. S. 64, 66, 68-69 (1938) (parties agreed that Swift v. Tyson, 16 Pet. 1 (1842), was still good law). Cf. Vachon v. New Hampshire, 414 U. S. 478 (1974); Moragne v. States Marine Lines, 398 U. S. 375 (1970); Silber v. United States, 370 U. S. 717 (1962). See generally R. Stern & E. Gressman, Supreme Court Practice §§ 6.27 and 7.14 (5th ed. 1978).
As will be more apparent below, the Secretary, represented in this Court by the Solicitor General, has changed his position on the intent issue since the decision of the Court of Appeals; and his present position is at odds with a 1969 opinion of the Attorney General, 42 Op. Atty. Gen. 397, which interpreted Afroyim v. Rusk and guided the administrative actions of the State Department and the Immigration and Naturalization Service. The issue of intent is important, the parties have briefed it, and we shall address it.
As the Secretary states in his brief, Brief for Appellant 57, n. 28, “both the State Department and the Immigration and Naturalization Service have adopted administrative guidelines that attempt to ascertain the individual’s intent by taking into consideration the nature of the expatriating act and the individual’s statements and actions made in connection with that act.”
The State Department’s guideline evidences a position on intent quite similar to that adopted here:
“In the light of the Afroyim, decision and the Attorney General’s Statement of Interpretation of that decision, the Department now holds that the taking of a meaningful oath of allegiance to a foreign state is highly persuasive evidence of an intent to transfer or abandon allegiance. The taking of an oath that is not meaningful does not result in expatriation. The meaningfulness of the oath must be decided by the Department on the individual merits of each case.” Department of State, 8 Foreign Affairs Manual § 224.2, p. 2 (1970) (emphasis in original).
Cf. Immigration and Naturalization Service, Interpretations § 349.1 (d) (2), p. 6976.4 (1970) (characterizing Afroyim as overruling Perez’s holding “that expatriation could flow from a voluntary act even though the citizen did not intend thereby to relinquish his United States citizenship”).
Contemporaneous academic commentary agreed that Afroyim imposed the requirement of intent to relinquish citizenship on a party seeking to establish expatriation. See Comment, An Expatriation Enigma: Afroyim v. Rusk, 48 B. U. L. Rev. 295, 298 (1968); Note, Acquisition of Foreign Citizenship: The Limits of Afroyim v. Rush, 54 Cornell L. Rev. 624, 624-625 (1969); The Supreme Court: 1966 Term, 81 Harv. L. Rev. 69, 126 (1967); Note, 29 Ohio St. L. J. 797, 801 (1968).
In his response to the petition for certiorari in Matheson, the Solicitor General argued that “Afroyim broadly held that Congress has no power to prescribe any objective conduct that will automatically result in
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer: |
sc_petitioner | 055 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
DANIELS v. UNITED STATES
No. 99-9136.
Argued January 8, 2001
Decided April 25, 2001
G. Michael Tanaka argued the cause for petitioner. With him on the briefs was Maria E. Stratton.
Deputy Solicitor General Dreeben argued the cause for the United States.' With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, James A. Feldman, and Kathleen A. Felton.
Kent S. Sckeidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Justice O’Connor
delivered the opinion of the Court in part.
In Custis v. United States, 511 U.S. 485 (1994), we addressed whether a defendant sentenced under the Armed Career Criminal Act of 1984 (ACCA), 18 U. S. C. § 924(e), could collaterally attack the validity of previous state convictions used to enhance his federal sentence. We held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to bring such a challenge in his federal sentencing proceeding. 511 U.S., at 487. We now consider whether, after the sentencing proceeding has concluded, the individual who was sentenced may challenge his federal sentence through a motion under 28 U. S. C. §2255 (1994 ed., Supp. V) on the ground that his prior convictions were unconstitutionally obtained. We hold that, as a general rule, he may not. There may be rare circumstances in which §2255 would be available, but we need not address the issue here.
I
In 1994, petitioner Earthy D. Daniels, Jr., was tried and convicted of being a felon in possession of a firearm in violation of 18 U. S. C. § 922(g)(1). The Government then sought to enhance his sentence under the ACCA. App. 4-5. The ACCA imposes a mandatory minimum 15-year sentence on anyone who violates § 922(g)(1) and who has three previous convictions for a violent felony or a serious drug offense. § 924(e)(1). Petitioner had been convicted in California in 1978 and 1981 for robbery, and in 1977 and 1979 for first degree burglary. Id., at 14. The District Court found petitioner to be an armed career criminal within the meaning of the ACCA and, after granting a downward departure, the District Court sentenced petitioner to 176 months. Id., at 14, 18. Had petitioner not been adjudged an armed career criminal, he would have received at most a 120-month sentence. 18 U. S. C. § 924(a)(2). On direct appeal, petitioner argued unsuccessfully that his two burglary convictions did not qualify as predicate offenses under the ACCA. See 86 F. 3d 1164 (CA9 1996) (table).
Petitioner then filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U. S. C. §2255 in the United States District Court for the Central District of California. Section 2255, a posteonviction remedy for federal prisoners, permits "[a] prisoner in custody under sentence of a [federal] court” to “move the court which imposed the sentence to vacate, set aside or correct the sentence” upon the ground that “the sentence was imposed in violation of the Constitution or laws of the United States.” Petitioner asserted that his current federal sentence was imposed in violation of the Constitution because it was based in part on his 1978 and 1981 robbery convictions. Those prior convictions, he alleged, were themselves unconstitutional because they both were based on guilty pleas that were not knowing and voluntary, and because the 1981 conviction was also the product of ineffective assistance of counsel. App. 51-52. He did not contend that §2255 relief was appropriate because his current sentence was imposed in violation of the ACCA. Cf. Brief for Petitioner 13.
The District Court denied the §2255 motion, App. 58-67, and a panel of the Ninth Circuit Court of Appeals affirmed, 195 F. 3d 501 (1999). The court held that our decision in Custis “bar[s] federal habeas review of the validity of a prior conviction used for federal sentencing enhancement unless the petitioner raises a . . . claim [under Gideon v. Wainwright, 372 U. S. 335 (1963)].” 195 F. 3d, at 503 (internal quotation marks and citation omitted). Because the Courts of Appeals are divided as to whether Custis bars relief under §2255 as well as in federal sentencing proceedings, we granted certiorari. 530 U. S. 1299 (2000).
HH H-=H
The petitioner in Custis attempted, during his federal sentencing proceeding, to attack prior state convictions used to enhance his sentence under the ACCA. Like petitioner here, Custis challenged his prior convictions as the product of allegedly faulty guilty pleas and ineffective assistance of counsel. 511 U. S., at 488. We held that with the sole exception of convictions obtained in violation of the right to counsel, Custis had no right under the ACCA or the Constitution “to collaterally attack prior convictions” in the course of his federal sentencing proceeding. Id., at 490-497. While the “failure to appoint counsel for an indigent defendant was a unique constitutional defect” that justified the exception for challenges concerning Gideon v. Wainwright, 872 U.S. 835 (1963), 511 U.S., at 496, challenges of the type Custis sought to bring did not “ris[e] to the level of a jurisdictional defect,” ibid.
Two considerations supported our constitutional conclusion in Custis: ease of administration and the interest in promoting the finality of judgments. With respect to the former, we noted that resolving non-Gideon-type constitutional attacks on prior convictions “would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records.” 511 U. S., at 496. With respect to the latter, we observed that allowing collateral attacks would “inevitably delay and impair the orderly administration of justice” and “deprive the state-court judgment of its normal force and effect.” Id., at 497 (internal quotation marks and brackets omitted).
A
Petitioner contends that the Custis rule should not extend to §2255 proceedings because the concerns we articulated in Gustis are not present in the §2255 context. Brief for Petitioner 22-26. We disagree. First, a district court evaluating a §2255 motion is as unlikely as a district court engaged in sentencing to have the documents necessary to evaluate claims arising from long-past proceedings in a different jurisdiction. While petitioner is quite right that federal district courts are capable of evaluating fact-intensive constitutional claims raised by way of a habeas petition, id., at 22-23, institutional competence does not make decades-old state court records and transcripts any easier to locate.
The facts of this case only reinforce our concern. For example, petitioner contends that he entered his 1978 and 1981 guilty pleas without a full understanding of the essential elements of the crimes with which he was charged, and therefore the resulting convictions violated due process. App. 40-42, 50-51. These claims by their nature require close scrutiny of the record below. Yet petitioner has not placed the transcript from either plea colloquy in the record. In fact, he has admitted that the 1978 transcript is missing from the state court file. Cf. id., at 38, n. 3. Under these circumstances, it would be an almost Mile exercise for a district court to attempt to determine accurately what was communicated to petitioner more than two decades ago.
With respeet to the concern for finality, petitioner argues that because he has served the complete sentences for his 1978 and 1981 convictions, the State would suffer little, if any, prejudice if those convictions were invalidated through a collateral challenge under §2255. Brief for Petitioner 24-26. To the contrary, even after a defendant has served the full measure of his sentence, a State retains a strong interest in preserving the convictions it has obtained. States impose a wide range of disabilities on those who have been convicted of crimes, even after their release. For example, in California, where petitioner committed his crimes, persons convicted of a felony may be disqualified from holding public office, subjected to restrictions on professional licensing, and barred from possessing firearms. See U. S. Dept, of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-By-State Survey 29-32 (Oct. 1996). Further, each of the 50 States has a statute authorizing enhanced sentences for recidivist offenders. E. g., Cal. Penal Code Ann. § 667 (West 1999). See also Parke v. Raley, 506 U.S. 20, 26-27 (1992).
At oral argument, petitioner suggested that invalidating a prior conviction on constitutional grounds for purposes of its use under the ACCA would have no effect beyond the federal proceeding. Tr. of Oral Arg. 8-10. Although that question is not squarely presented here, if a state conviction were determined to be sufficiently unreliable that it could not be used to enhance a federal sentence, the State’s ability to use that judgment subsequently for its own purposes would be, at the very least, greatly undermined. Thus, the State does have a real and continuing interest in the integrity of its judgments.
B
On the most fundamental level, petitioner attempts to distinguish Custis as a decision only about the appropriate forum in which a defendant may challenge prior convictions used to enhance a federal sentence. The issue in Custis, according to petitioner, was “'where, not whether, the defendant could attack a prior conviction for constitutional infirmity.’” Brief for Petitioner 14 (quoting Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg, J., dissenting) (original emphasis deleted)). The appropriate forum for such a challenge, petitioner argues, at least where no other forum is available, is a federal proceeding under §2255. Brief for Petitioner 16.
The premise underlying petitioner’s argument — that defendants may challenge their convictions for constitutional infirmity — is quite correct. It is beyond dispute that convictions must be obtained in a manner that comports with the Federal Constitution. But it does not necessarily follow that a §2255 motion is an appropriate vehicle for determining whether a conviction later used to enhance a federal sentence was unconstitutionally obtained.
Our system affords a defendant convicted in state court numerous opportunities to challenge the constitutionality of his conviction. He may raise constitutional claims on direct appeal, in postconvietion proceedings available under state law, and in a petition for a writ of habeas corpus brought pursuant to 28 U. S. C. §2254 (1994 ed. and Supp. V). See generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 5.1.a (3d ed. 1998). These vehicles for review, however, are not available indefinitely and without limitation. Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim. See, e. g., United States v. Olano, 507 U.S. 725, 731 (1993) (“ 'No procedural principle is more familiar to this Court than that a constitutional right... may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it’” (quoting Yakus v. United States, 321U. S. 414,444 (1944))). One of the principles vindicated by these limitations is a "presumption deeply rooted in our jurisprudence: the 'presumption of regularity* that attaches to final judgments, even when the question is waiver of constitutional rights.” Parke, supra, at 29.
Thus, we have held that if, by the time of sentencing under the ACCA, a prior conviction has not been set aside on direct or collateral review, that conviction is presumptively valid and may be used to enhance the federal sentence. See Cus-tis, 511 U. S., at 497. This rule is subject to only one exception: If an enhanced federal sentence will be based in part on a prior conviction obtained in violation of the right to counsel, the defendant may challenge the validity of his prior conviction during his federal sentencing proceedings. Id., at 496. No other constitutional challenge to a prior conviction may be raised in the sentencing forum. Id., at 497.
After an enhanced federal sentence has been imposed pursuant to the ACCA, the person sentenced may pursue any channels of direct or collateral review still available to challenge his prior conviction. In Custis, we noted the possibility that the petitioner there, who was still in custody on his prior convictions, could “attack his state sentences [in state court] or through federal habeas review.” Ibid. If any such challenge to the underlying conviction is successful, the defendant may then apply for reopening of his federal sentence. As in Custis, we express no opinion on the appropriate disposition of such an application. Cf. ibid.
If, however, a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse. The presumption of validity that attached to the prior conviction at the time of sentencing is conclusive, and the defendant may not collaterally attack his prior conviction through a motion under § 2255. A defendant may challenge a prior conviction as the product of a Gideon violation in a §2255 motion, but generally only if he raised that claim at his federal sentencing proceeding. See United States v. Frady, 456 U.S. 152, 167-168 (1982) (holding that procedural default rules developed in the habeas corpus context apply in §2255 eases); see also Reed v. Farley, 512 U. S. 339, 354-355 (1994).
Justice Souter says that our holding here “rul[es] out the application of §2255 when the choice is relief under §2255 or no relief at all.” Post, at 390 (dissenting opinion). This all-or-nothing characterization of the problem misses the point. As we have said, a defendant generally has ample opportunity to obtain constitutional review of a state conviction. Supra, at 381. But once the “door” to such review “has been closed,” post, at 388, by the defendant himself— either because he failed to pursue otherwise available remedies or because he failed to prove a constitutional violation— the conviction becomes final and the defendant is not entitled to another bite at the apple simply because that conviction is later used to enhance another sentence.
To be sure, the text of §2255 is broad enough to cover a claim that an enhanced federal sentence violates due process. See ibid. See also n. 2, infra. But when such a due process claim is predicated on the consideration at sentencing of a fully expired prior conviction, we think that the goals of easy administration and finality have ample “horsepower” to justify foreclosing relief under §2255. Were we to allow defendants sentenced under the ACCA to collaterally attack prior convictions through a §2255 motion, we would effectively permit challenges far too stale to be brought in their own right, and sanction an end run around statutes of limitations and other procedural barriers that would preclude the movant from attacking the prior conviction directly. Nothing in the Constitution or our precedent requires such a result.
C
We recognize that there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own. The circumstances of this ease do not require us to determine whether a defendant could use a motion under § 2255 to chai-lenge a federal sentence based on such a conviction. C£, e. g., 28 U. S. C. §2255 (1994 ed., Supp. V) (allowing a second or successive §2255 motion if there is "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense”); ibid, (tolling 1-year limitation period while movant is prevented from making a §2255 motion by an “impediment... created by governmental action in violation of the Constitution or laws of the United States”).
Ill
No such claim is made here. The sole basis on which petitioner Daniels challenges his current federal sentence is that two of his prior state convictions were the products of inadequate guilty pleas and ineffective assistance of counsel. Petitioner could have pursued his claims while he was in custody on those convictions. As his counsel conceded at oral argument, there is no indication that petitioner did so or that he was prevented from doing so by some external force. Tr. of Oral Arg. 3-4, 6.
Petitioner’s federal sentence was properly enhanced pursuant to the ACCA based on his four facially valid prior state convictions. Because petitioner failed to pursue remedies that were otherwise available to him to challenge his 1978 and 1981 convictions, he may not now use a §2255 motion to collaterally attack those convictions. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore affirmed.
It is so ordered.
Justice Souter is concerned that a defendant may forgo “direct challenge because the penalty was not practically worth challenging, and... collateral attack because he had no counsel to speak for him.” Post, at 391 (dissenting opinion). Whatever incentives may exist at the time of conviction, the fact remains that avenues of redress are generally available if sought in a timely manner. If a person chooses not to pursue those remedies, he does so with the knowledge that the conviction will stay on his record. This knowledge should serve as an incentive not to commit a subsequent crime and risk having the sentence for that crime enhanced under a recidivist sentencing statute.
After comparing the text of §§2254 and 2255, Justice Scaiia concludes that “Congress did not expect challenges to state convictions (used to enhance federal convictions) to be brought under §2255.” Post, at 386 (opinion concurring in part). This is, of course, true. But it is also beside the point, as the subject of the §2255 motion in this circumstance is the enhanced federal sentence, not the prior state conviction.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_r_fed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Felix WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
Nos. 14941-14943.
United States Court of Appeals Eighth Circuit.
Nov. 12, 1954.
E. C. Mogren, St. Paul, Minn., for appellant.
Clifford Janes, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., Minneapolis, Minn., was with him on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.
WOODROUGH, Circuit Judge.
Defendant Felix Williams was tried and convicted on three indictments charging twenty-one violations of the narcotics laws, 21 U.S.C.A. § 174, and 26 U.S.C.A. §§ 2553(a) and 2557(a). The three cases were consolidated for trial in the court below and on appeal to this court. After the jury returned a verdict of guilty on all counts the trial court sentenced defendant to three years imprisonment, said sentence to serve as a “single general sentence” under the three indictments.
On this appeal the defendant does not challenge the form or sufficiency of the indictments, the sufficiency of the evidence to sustain the verdicts, nor the instructions of the court to the jury. He does not claim that anything offered in his defense was erroneously excluded. The only error assigned is that the defendant did not receive a fair trial. It is urged that (a) the unfairness of government witnesses, the court and counsel, and (b) errors committed during the trial, deprived defendant of his constitutional guarantee of a fair and impartial trial.
(a). At the beginning of the trial the court, on motion of the government, dismissed six counts of one indictment charging defendant with sales of narcotics to two persons, Wilson and Stone. These men were known drug addicts and were serving prison sentences connected with their addiction at the time of this trial. Defendant says he knew these men would deny that he had ever sold them drugs, as charged in the dismissed counts of the indictment, and therefore his defense was weakened because he had to call Wilson and Stone as his own witnesses all the time knowing that their testimony would be questioned. Defendant cites no authority, and we have found none, to sustain his position that the dismissal of the six counts constituted error. We observe no prejudice to any of defendant’s rights resulting from the dismissal of these counts.
Defendant refers to several instances during the trial wherein he charges the conduct of the prosecuting attorney was unfair and prejudicial. He cites the following as an example of government counsel misstating the evidence :
“A. [by defendant]: No, it’s not complete, I been to the reformatory when I was a kid, how could I hide that?
“Mr. Mogren [defense counsel]: What is that now?
“Mr. Essling [government counsel] : He said of course he went to the reformatory when he was a kid, how could he help that.”
It would seem from the excerpt that the prosecuting attorney, as well as defense counsel, failed to hear defendant’s answer correctly but there is no indication that the incident occasioned any prejudice to defendant. The other instances of alleged unfair conduct of government counsel in misstating the evidence are no more substantial than the one referred to. We have examined each of them and deem it sufficient to say that none of them could have been prejudicial to defendant.
Defendant also charges that government counsel was unfair in constantly asking his witnesses leading questions. Defendant’s brief refers to only two such instances. One occurred during the preliminary phase of a witness’s direct examination, and consisted merely of laying the foundation for his testimony. This procedure seems to be accepted as proper in many courts. Even if technically improper, it has not been shown on this record to have been prejudicial to the defendant. The other instance cited as improper leading by government counsel was the following question to the government witness who purchased narcotics from the defendant:
“Q. And you went to Felix Williams, didn’t you, because you knew that was the only place to get a large quantity [of narcotics], isn’t that right?”
The record does not show an objection interposed by defendant to this question and the error, if any, must be deemed to have been waived.
Defendant next claims the conduct of government counsel was improper in that he interrupted, on cross-examination, the testimony of a defense witness. This claim is without merit because the witness’s answer was not responsive, it was repetitious of his previous testimony, no objection was offered, and the witness later completed the answer under examination by defense counsel.
Defendant further charges that government counsel was unfair in bringing in names of other “dope peddlers” and users, to the prejudice of the defendant. Defendant was asked if he had ever talked with Joe Schwartz, his employer, about narcotics and whether he knew Schwartz was a convicted narcotics peddler. These questions were clearly proper as defendant had testified on direct examination that he knew nothing about narcotics, had never used them himself and had never been around anyone who did. Defendant’s counsel apparently thought the questions were proper as no objection was made at the time they were asked.
Other instances of alleged improper questioning by government counsel, except one, were not objected to by defendant and any error in respect to them must be considered as having been waived. Defendant did object to a question asked defense witness Tanksley regarding a roll of money he gave to the defendant and what the money was for. Government counsel stated, at that time, that he would have evidence to connect up the matter and in rebuttal did introduce testimony tending to establish that Tanksley said the roll of money belonged to defendant and that he had to give it to him. We find nothing improper or prejudicial in government counsel’s questioning of defense witnesses.
Defendant also contends that throughout the trial the court maintained and exhibited an antagonistic and improper attitude toward the defendant. This contention we find to be clearly without merit. On two occasions the court mildly rebuked the defendant for not responding to the questions asked. We find no justification for criticism of the court’s action in this respect. It is the duty of the court to exercise control over the trial proceedings' and it is to be commended,' rather than condemned, for judiciously pierforming that' duty. Where a witness insists'on giving long, rambling answers- to simple, direct questions -we think it the proper course for the court to direct him to be responsive to the .questions asked..
(b). Defendant contends the court erred in receiving into evidence certain testimony of a government witness. Defense counsel was cross-examining the witness as follows:
“Mr. Mogren: You say that you know the defendant has sold dope. Have you made any formal charges against him yourself?
“The witness: Well, when you see—
“Mr. Mogren: Answer yes or no.
“The Court: Give him am opportunity to answer the question.
“Mr. Mogren: That can be answered yes or no.
“The Court: I don’t think it can.
“Mr. Mogren: Have you made any formal charges?
(Thereupon, the witness related in. some detail actions of defendant observed by him which caused his belief that defendant was engaged in illegal narcotic activity.)
“Mr. Mogren: Now, at this time I am going to move for a mistrial on the ground the Court, permitted this man to tell a story that is hearsay, that has nothing, to do with any question-: I merely asked him the one question as to whether or not he was making a formal charge.
“The Court: You asked this witness why he believed that your client was selling dope and he told you.
“Mr. Mogren: I asked no such question. * * *
“The Court: The answer may stand.”
The court, quite obviously interpreted the question as calling for an explanatory answer stating the basis for the witness’s belief that defendant was selling dope. The record shows that testimony had already been given, without objection, to the effect that the Narcotics Bureau and this particular witness knew that defendant was trafficking in drugs and narcotics. Defendant was on trial formally charged with illegal possession and sale thereof. The indictments had been returned by the grand jury. The question “Have you made any formal charges against him yourself” was somewhat ambiguous. If it was intended to inquire whether the witness, had formulated what he had observed of defendant’s activities into charges against defendant then the answer would appear to be proper. In this connection we note that the answer merely repeated matters previously testified to by government witnesses. We also note that defendant was fully apprised of the court’s interpretation of the question and, instead of withdrawing it when the witness was given permission to give an explanatory answer, repeated the question a second time. We conclude that the court’s ruling on this question was not erroneous and that defendant was in no wise prejudiced by the answer given.
Defendant also contends the court erred in failing to rule on his motion to strike certain testimony. Government witness Gronseth testified to a meeting at which defendant and defense witness Tanksley were present. She testified that defendant had a penny box of matches. The next question was:
“Q. And what did they do with the contents that was in the penny box of matches?
“A. They had some cigarette papers and they rolled themselves marijuana cigarettes.
“Mr. Mogren: Just a minute, I will object to that, she’s not competent to tell what’s in those cigarettes and I ask it to be stricken.
“Q. Did they say what it was? A. Yes, they did.
“Q. What did they say it was? A. Marijuana.”
Clearly there was no error in the failure of the court to rule on defendant’s motion to strike the testimony. The testimony subsequent to defendant’s objection and motion showed the basis for the assertion that the cigarettes contained marijuana. No possible prejudice could have resulted to defendant by reason of the court’s failure to rule on the motion. See and compare Kubik v. U. S., 8 Cir., 53 F.2d 763.
Defendant next urges that the court erred in admitting in evidence a written statement that was given to the arresting officers by one Beechem. Objection was made to the statement on the trial that it was hearsay and irrelevant and it is so argued here.
The record includes the following circumstances connected with the Beechem statement. Defendant testified that he “was being persecuted and framed” by the officers in these cases and he called among others a witness named Stone who testified that the officers arresting him had gotten a statement from him accusing defendant of supplying him with narcotics. That the statement was false but that the officers induced Stone to make it by promising him a “shot of dope”. When he made it they gave him the shot. The testimony of three officers who participated in the arrest and questioning of Stone was to the effect that they arrested the two known narcotic addicts Stone and Beechem together and questioned them about the source of their narcotics. They offered no inducements to them but merely sought to ascertain the truth. Stone’s statement showed he obtained narcotics from defendant. Beechem’s was to the effect that he had never purchased from defendant. But the evidence of the officers was that both addicts were accorded the same treatment. They were both given an injection of morphine sulphate and hospitalized.
The according of the same treatment to the addict who accused defendant as was accorded to the addict who did not accuse him had some tendency to corroborate the officers and refute Stone. The admission of the Beechem statement declaring Beechem had not obtained narcotics from defendant was not prejudicial to defendant. Its admission in evidence was not reversible error.
It is also argued that the court erred in receiving in evidence Government Exhibit 6, a gum wrapper containing narcotics seized from defense witness Wilson on his arrest prior to the date of this trial. Wilson testified that he had never purchased narcotics from the defendant. The government in rebuttal cálled the officer who had arrested Wilson. He identified the gum wrapper and testified that Wilson, at the time of his arrest, stated defendant was supplying him with 100 capsules of heroin at a time, that he used part of it himself and sold the rest. We think Government Exhibit 6 was competent as tending to impeach Wilson’s testimony and find no error in its admission in evidence.
The final argument advanced on appeal is that government witnesses volunteered, and the court received, testimony not requested by defense counsel. The two instances cited in defendant’s brief occurred on cross-examination of a government agent. The answers now charged to have been given gratis were, in our opinion, directly responsive to the questions asked. Further, defendant was apparently satisfied with the answers received as he entered no objections nor did he move to have the testimony stricken. We find no error in the reception of this evidence.
All of the points contended for by defendant have been considered but we find no reversible errors therein. Defendant received a fair trial and was convicted upon substantial evidence. The judgment is affirmed.
. The record does not contain the instructions as required by our Rule 10(b).
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_procedur | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
John W. HECHINGER, et al., Appellants, v. Bernard V. O’NEILL, et al., Appellees. Bernard V. O’NEILL, et al., Appellants, v. John W. HECHINGER, et al., Appellees.
Nos. 12046-12047.
United States Court of Appeals District of Columbia Circuit
Argued Oct. 20, 1954.
Decided Nov. 4, 1954.
Mr. Cornelius H. Doherty, Washington, D. C., with whom Mr. Robert A. Littleton, Washington, D. C., was on the brief, for appellants in No. 12046 and appellees in No. 12047.
Mr. James M. Earnest, Washington, D. C., with whom Mr. Fred M. Vinson, Jr., Washington, D. C., was on the brief, for appellees in No. 12046 and appellants in No. 12047.
Before EDGERTON, FAHY, and WASHINGTON, Circuit Judges.
PER CURIAM.
These appeals involve controversies between trustees and beneficiaries. We find no error affecting substantial rights in the District Court’s disposition of these controversies.
Affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
sc_respondent | 080 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
ALEXANDER v. GARDNER-DENVER CO.
No. 72-5847.
Argued November 5, 1973
Decided February 19, 1974
Powell, J., delivered the opinion for a unanimous Court.
Paul J. Spiegelman argued the cause for petitioner. With him on the brief was Russell Specter.
Robert G. Good argued the cause and filed a brief for respondent.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Keith A. Jones, Denis F. Gordon, Eileen M. Stein, Joseph T. Eddins, and Beatrice Rosenberg.
Briefs of amici curiae urging affirmance were filed by Milton A. Smith and Jay S. Siegel for the Chamber of Commerce of the United States, and by Gerard C. Smetana, Lawrence M. Cohen, and Alan Baywid for the American Retail Federation.
Mr. Justice Powell
delivered the opinion of the Court.
This case concerns the proper relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements in the resolution and enforcement of an individual’s rights to equal employment opportunities under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq. Specifically, we must decide under what circumstances, if any, an employee’s statutory right to a trial de novo under Title VII may be foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.
I
In May 1966, petitioner Harrell Alexander, Sr., a black, was hired by respondent Gardner-Denver Co. (the company) to perform maintenance work at the company’s plant in Denver, Colorado. In June 1968, petitioner was awarded a trainee position as a drill operator. He remained at that job until his discharge from employment on September 29, 1969. The company informed petitioner that he was being discharged for producing too many defective or unusable parts that had to be scrapped.
On October 1, 1969, petitioner filed a grievance under the collective-bargaining agreement in force between the company and petitioner’s union, Local No. 3029 of the United Steelworkers of America (the union). The grievance stated: “I feel I have been unjustly discharged and ask that I be reinstated with full seniority and pay.” No explicit claim of racial discrimination was made.
Under Art. 4 of the collective-bargaining agreement, the company retained “the right to hire, suspend or discharge [employees] for proper cause.” Article 5, § 2, provided, however, that “there shall be no discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry,” and Art. 23, § 6 (a), stated that “[n]o employee will be discharged, suspended or given a written warning notice except for just cause.” The agreement also contained a broad arbitration clause covering “differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement” and “any trouble aris[ing] in the plant.” Disputes were to be submitted to a multi-step grievance procedure, the first four steps of which involved negotiations between the company and the union. If the dispute remained unresolved, it was to be remitted to compulsory arbitration. The company and the union were to select and pay the arbitrator, and his decision was to be “final and binding upon the Company, the Union, and any employee or employees involved.” The agreement further provided that “[t]he arbitrator shall not amend, take away, add to, or change any of the provisions of this Agreement, and the arbitrator’s decision must be based solely upon an interpretation of the provisions of this Agreement.” The parties also agreed that there “shall be no suspension of work” over disputes covered by the grievance-arbitration clause.
The union processed petitioner’s grievance through the above machinery. In the final pre-arbitration step, petitioner raised, apparently for the first time, the claim that his discharge resulted from racial discrimination. The company rejected all of petitioner’s claims, and the grievance proceeded to arbitration. Prior to the arbitra-tionhearing, however, petitioner filed a charge of racial discrimination with the Colorado Civil Rights Commission, which referred the complaint to the Equal Employment Opportunity Commission on November 5, 1969.
At the arbitration hearing on November 20, 1969, petitioner testified that his discharge was the result of racial discrimination and informed the arbitrator that he had filed a charge with the Colorado Commission because he “could not rely on the union.” The union introduced a letter in which petitioner stated that he was “knowledgeable that in the same plant others have scrapped an equal amount and sometimes in excess, but by all logical reasoning I . . . have been the target of preferential discriminatory treatment.” The union representative also testified that the company’s usual practice was to transfer unsatisfactory trainee drill operators back to their former positions.
On December 30, 1969, the arbitrator ruled that petitioner had been “discharged for just cause.” He made no reference to petitioner’s claim of racial discrimination. The arbitrator stated that the union had failed to produce evidence of a practice of transferring rather than discharging trainee drill operators who accumulated excessive scrap, but he suggested that the company and the union confer on whether such an arrangement was feasible in the present case.
On July 25, 1970, the Equal Employment Opportunity Commission determined that there was not reasonable cause to believe that a violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seg., had occurred. The Commission later notified petitioner of his right to institute a civil action in federal court within 30 days. Petitioner then filed the present action in the United States District Court for the District of Colorado, alleging that his discharge resulted from a racially discriminatory employment practice in violation of § 703 (a) (1) of the Act, 42 U. S. C. § 2000e-2 (a) (1).
The District Court granted respondent’s motion for summary judgment and dismissed the action. 346 F. Supp. 1012 (1971). The court found that the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to petitioner. It then held that petitioner, having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective-bargaining agreement, was bound by the arbitral decision and thereby precluded from suing his employer under Title VII. The Court of Appeals for the Tenth Circuit affirmed per curiam on the basis of the District Court’s opinion. 466 F. 2d 1209 (1972).
We granted petitioner’s application for certiorari. 410 U. S. 925 (1973). We reverse.
II
Congress enacted Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973); Griggs v. Duke Power Co., 401 U. S. 424, 429-430 (1971). Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. In the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103, Congress amended Title VII to: provide the Commission with further authority to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge.
Even in its amended form, however, Title VII does not provide the Commission with direct powers of enforcement. The Commission cannot adjudicate claims or impose administrative sanctions. Rather, final responsibility for enforcement of Title VII is vested with federal courts. The Act authorizes courts to issue injunctive relief and to order such affirmative action as may be appropriate to remedy the effects of unlawful employment practices. 42 U. S. C. -§§ 2000e-5 (f) and (g) (1970 ed., Supp. II). Courts retain these broad remedial powers despite a Commission finding of no reasonable cause to believe that the Act has been violated. Mc Donnell Douglas Corp. v. Green, supra, at 798-799. Taken together, these provisions make plain that federal courts have been assigned plenary powers to secure compliance with Title VII.
In addition to reposing ultimate authority in federal courts, Congress gave private individuals a significant role in the enforcement process of Title VII. Individual grievants usually initiate the Commission’s investigatory and conciliatory procedures. And' although the 1972 amendment to Title VII empowers the Commission to bring its own actions, the private right of action remains an essential means of obtaining judicial enforcement of Title VII. 42 U. S. C. § 2000e-5 (f) (1) (1970 ed., Supp. II). In such cases, the private litigant not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices. Hutchings v. United States Industries, 428 F. 2d 303, 310 (CA5 1970); Bowe v. Colgate-Palmolive Co., 416 F. 2d 711, 715 (CA7 1969); Jenkins v. United Gas Corp., 400 F. 2d 28, 33 (CA5 1968). See also Newman v. Piggie Park Enterprises, 390 U. S. 400, 402 (1968).
Pursuant to this statutory scheme, petitioner initiated the present action for judicial consideration of his rights under Title VII. The District Court and the Court of Appeals held, however, that petitioner was bound by the prior arbitral decision and had no right to sue under Title VII. Both courts evidently thought that this result was dictated by notions of election of remedies and waiver and by the federal policy favoring arbitration of labor disputes, as enunciated by this Court in Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), and the Steelworkers trilogy. See also Boys Markets v. Retail Clerks Union, 398 U. S. 235 (1970); Gateway Coal Co. v. United Mine Workers of America, 414 U. S. 368 (1974). We disagree.
Ill
Title VII does not speak expressly to the relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements. It does, however, vest federal courts with plenary powers to enforce the statutory requirements; and it specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner (1) filed timely a charge of employment discrimination with the Commission, and (2) received and acted upon the Commission’s statutory notice of the right to sue. 42 U. S. C. § § 2000e-5 (b), (e), and (f). See McDonnell Douglas Corp. v. Green, supra, at 798. There is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual’s right to sue or divests federal courts of jurisdiction.
In addition, legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. In the Civil Rights Act of 1964, 42 U. S. C. § 2000a et seq., Congress indicated that it considered the policy against discrimination to be of the “highest priority.” Newman v. Piggie Park Enterprises, supra, at 402. Consistent with this view, Title VII provides for consideration of employment-discrimination claims in several forums. See 42 U. S. C. § 2000e-5 (b) (1970 ed., Supp. II) (EEOC); 42 U. S C. § 2000e-5 (c) (1970 ed., Supp. II) (state and local agencies); 42 U. S. C. § 2000e-5 (f) (1970 ed., Supp. II) (federal courts). And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination. In sum, Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.
In reaching the opposite conclusion, the District Court relied in part on the doctrine of election of remedies. That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent, has no application in the present context. In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. The resulting scheme is somewhat analogous to the procedure under the National Labor Relations Act, as amended, where disputed transactions may implicate both contractual and statutory rights. Where the statutory right underlying a particular claim may not be abridged by contractual agreement, the Court has recognized that consideration of the claim by the arbitrator as a contractual dispute under the collective-bargaining agreement does not preclude subsequent consideration of the claim by the National Labor Relations Board as an unfair labor practice charge or as a petition for clarification of the union’s representation certificate under the Act. Carey v. Westinghouse Corp., 375 U. S. 261 (1964). Cf. Smith v. Evening News Assn., 371 U. S. 195 (1962). There, as here, the relationship between the forums is complementary since consideration of the claim by both forums may promote the policies underlying each.. Thus, the rationale behind the election-of-remedies doctrine cannot support the decision below.
We are also unable to accept the proposition that petitioner waived his cause of action under Title VII. To begin, we think it clear that there can be no prospective waiver of an employee’s rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956); Boys Markets v. Retail Clerks Union, 398 U. S. 235 (1970). These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportunities. Title VII’s strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. In these circumstances, an employee’s rights under Title VII are not susceptible of prospective waiver. See Wilko v. Swan, 346 U. S. 427 (1953).
The actual submission of petitioner’s grievance to arbitration in the present case does not alter the situation. Although presumably an employee may waive his cause of action under Title VII as part of a voluntary settlement, mere resort to the arbitral forum to. enforce contractual rights constitutes no such waiver. Since an employee’s rights under Title VII may not be waived prospectively, existing contractual rights and remedies against discrimination must result from other concessions already made by the union as part of the economic bargain struck with the employer. It is settled law that no additional concession may be exacted from any employee as the price for enforcing those rights. J. I. Case Co. v. NLRB, 321 U. S. 332, 338-339 (1944).
Moreover, a contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins and are equally available to the aggrieved employee. This point becomes apparent through consideration of the role of the arbitrator in the system of industrial self-government. As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the “industrial common law of the shop” and the various needs and desires of the parties. The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties:
“[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960).
If an arbitral decision is based “solely upon the arbitrator’s view of the requirements of enacted legislation,” rather than on an interpretation of the collective-bargaining agreement,- the arbitrator has “exceeded the scope of the submission,” and the award will not be enforced. Ibid. Thus the arbitrator has authority to resolve only questions of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII.
IV
The District Court and the Court of Appeals reasoned that to permit an employee to have his claim considered in both the arbitral and judicial forums would be unfair since this woiild mean that the employer, but not the employee, was bound by the arbitral award. In the District Court’s words, it could not “accept a philosophy which gives the employee two strings to his bow when the employer has only one.” 346 F. Supp., at 1019. This argument mistakes the effect of Title VII. Under the Steelworkers trilogy, an arbitral decision is final and binding on the employer and employee, and judicial review is limited as to both. But in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process. An employer does not have “two strings to his bow” with respect to an arbitral decision for the simple reason that Title VII does not provide employers with
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_respond1_3_2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
Robert Lee PAYNE, Appellant, v. UNITED STATES of America, Appellee.
No. 26283.
United States Court of Appeals Fifth Circuit.
April 7, 1969.
Jack J. Taffer, Miami, Fla. (court appointed), for appellant.
William A. Meadows, Jr., U. S. Atty., Neal R. Sonnett, Asst. U. S. Atty., Miami, Fla., for appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:
Appellant appeals from conviction of interstate transportation of a stolen vehicle, 18 U.S.C.A. § 2312. We have considered all contentions of appellant, the briefs and the full record.
The court did not err in denying the motion for judgment of acquittal. Appellant was identified by a police officer as the person in possession of a vehicle in Florida which was sufficiently identified as having been recently stolen in Illinois. The possession was unexplained. Beufve v. United States, 374 F.2d 123 (5th Cir. 1967); Barfield v. United States, 229 F.2d 936 (5th Cir. 1956).
The statement made by appellant immediately after he was taken into custody, concerning his possession of a revolver, was not inadmissible under Miranda. Under the undisputed testimony the statement was volunteered by him. No interrogation had occurred.
In summation to the jury the prosecutor stated that a person who was shown to be near the scene of appellant’s arrest had been released by the police because he was only a hitchhiker. There was no evidence to that effect. Counsel for petitioner promptly objected and moved for a mistrial. The court denied the motion and gave corrective instructions. The only significance of the matter was that there were items of property nearby which tended to connect appellant with the stolen vehicle, and the jury could have inferred that the person said to be a hitchhiker put them there rather than appellant. Since appellant was found in possession of a revolver bearing a serial number which matched the serial number shown on a revolver box found in the stolen and previously abandoned vehicle, we are of the view that the one single, brief and erroneous reference to the status of the otherwise identified person was not reversible error.
Affirmed.
. Under Rule 18 the Court has placed this case on the Summary Calendar for disposition without oral argument. See Floyd v. Resor, 5 Cir., 1969, 409 F.2d 714, n. 2.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_appel1_1_2 | 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.
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 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".
William R. BLAIR, Jr., Appellant, v. DOWD’S, INC., et al. William R. BLAIR, Jr. v. DOWD’S, INC., Westinghouse Electric Corporation, Appellant.
Nos. 22760, 22761.
United States Court of Appeals, District of Columbia Circuit.
Argued March 12, 1970.
Decided Aug. 27, 1970.
Mr. Marshall A. Lerner, with whom Messrs. William D. Hall and Elliott I. Pollock, Washington, D. C., were on the brief, for appellant in No. 22,760 and ap-pellee in No. 22,761.
Mr. Edward F. McKie, Jr., with whom Mr. Albert J. Santorelli, Washington, D. C., was on the brief, for appellees in No. 22,760 and appellant in No. 22,761.
Before TAMM, ROBINSON and Mac-KINNON, Circuit Judges.
PER CURIAM:
The subject matter of the instant patent litigation is a complex bit of electronic circuitry found in the viscera of the common television set. In television receivers, the picture is reconstituted from the stream of information broadcast over the airwaves by means of a beam of electrons scanning rapidly and continuously, line by line, over a cathode ray picture tube. In addition to this “video” or picture information, the broadcast signal contains audio information which becomes the sound portion of a television program and synchronizing (“synch”) signals which regulate the scanning operation of the electron beam. Synch signals are separated from the general flow of broadcast information and made available for the task of controlling the electron beam by means of a device which is prosaically denominated a “synch separator.” Efficient operation of the synch separator is made difficult by “noise” or interference generated by any electrical equipment which produces sparks while in operation; if the synch separator is unable to distinguish these unwanted signals from the essential synch signals, the result is, as might be expected, a substantial degradation of picture quality.
The patent in question, No. 2,783,377, was issued to Wofford on February 26, 1957, on an application originally filed in 1951. (J.A. 1115.) The Wofford patent employs a device known as a noise inverter, which was common in the prior art, to eliminate the undesired noise by applying to the circuit an electrical signal of the opposite polarity which cancels the offending interference. The claimed invention in the Wofford patent, however, resides in the fact that in his circuit when the synch separator operates to remove the synch signals from the other broadcast information, it creates a complex “bias voltage” which is then used to control the noise inverter, thereby allegedly making the inverter more responsive to a wider range of noise levels than comparable devices known to the art in 1951.
Appellant Blair, the present owner of the Wofford patent, brought suit for infringement in the District Court, naming Dowd’s, Inc. as defendant (J.A. 11-12); thereafter Westinghouse, Inc., manufacturer of the allegedly infringing television sets sold by Dowd’s, intervened as a defendant in the action, contesting the issue of infringement and asserting as an affirmative defense the invalidity of the Wofford patent. (J.A. 14-18.) After a lengthy trial at which voluminous testimony and numerous exhibits were introduced, the District Court ruled that the Wofford patent was invalid because it was obvious within the meaning of 35 U.S.C. § 103 (1964), but that if the Wofford circuitry were deemed patentable, it would .have been infringed by Westinghouse. (J.A. 1115-32.) In the present cross-appeals, Blair contests the trial court’s holding on the question of obviousness, whereas Westinghouse attacks the finding on infringement. We affirm.
There can be little doubt that the trial court applied the correct principles of law in passing upon the obviousness of the claimed invention. After summarizing the evolution of the statutory criterion, the trial judge pointed out that the Wofford patent was a combination claim, and observed that the Supreme Court had cautioned that “[cjourts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements.” Great Atlantic & Pacific Tea Co. v. Supermarket Equip. Corp., 340 U. S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). The continuing, if not increased, vitality of this proposition is underscored by several recent decisions; see, e. g., Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 308, 24 L.Ed.2d 258 (1969) (combination claim must produce an “effect greater than the sum of the several effects taken separately” or a “synergistic result” in order to be patentable); Lear, Inc. v. Adkins, 395 U.S. 653, 670, 89 S.Ct. 1902, 1911, 23 L.Ed.2d 610 (1969) (courts should protect “the important public interest in permitting full and free competition in the use of ideas which are in reality a part of the public domain”); International Salt Co. v. Commissioner of Patents, 140 U.S. App.D.C. 378, 436 F.2d 126 (D.C.Cir. April 15, 1970).
The trial court then proceeded to determine as questions of fact the content of the prior art which was in existence at the time Wofford sought his patent, and the differences between the prior art and the claimed invention, as required by Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Specifically, the trial court found that a patent application by Anderson, filed before Wofford’s application, “discloses every feature shown in the patent at suit except the connection between the synchronizing separator and the noise inverter”; that the prior art was familiar with “the use of voltage originating in one part of the receiver for the control or operation of another part of the receiver”; that a patent issued to Schlesinger in 1940 “shows the use of voltage originating in the synchronizing separator to control another part of the receiver”; and that a patent issued to Holmes in 1942 “discloses a noise inverter which is operated by voltage derived from another part of the television receiver, in this case the detector circuit.” (J.A. 1125.) On the basis of these and other findings, the trial court concluded that Wofford’s circuit was “obvious and the product of mechanical skill rather than of the inventive faculty.” (J.A. 1126.) Appellant Blair argues at great length and in considerable technical detail that the Wofford patent constitutes a substantial departure from the prior art and that the trial court’s findings in this area are so defective as to mandate reversal. However, our review of the record reveals that the foregoing findings are amply supported by the evidence, and that the trial court’s ultimate conclusion — that the Wofford circuit is unpatentable by virtue of its obviousness —is fully in accord with applicable principles of law.
Other contentions advanced by the appellant Blair do not merit discussion in this opinion, and, in view of our disposition of the issue of obviousness, we need not pass upon the challenges by appellant Westinghouse to the trial court’s findings and conclusions on the issue of infringement. Accordingly, the judgment of the District Court is affirmed.
Affirmed.
Question: This question concerns the first listed appellant. 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_treat | G | 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.
NECHES CANAL CO. v. MILLER & VIDOR LUMBER CO. et al.
Circuit Court of Appeals, Fifth Circuit.
March 14, 1928.
Rehearing Denied April 12, 1928.
No. 5110.
1. Navigable waters <§=>26(l) — Lumber company using navigable stream held entitled to sue to restrain its obstruction by structure erected without permit (33 USCA §§ 401, 406).
Lumber company, which used navigable stream, obstructed in violation of statute by defendants, who failed to obtain permit required by 33 USCA § 401 (Comp. St. § 9971), held entitled to sue for injunction for removal of the structure causing the obstruction, under section 40p (Comp. St. § 9917).
2. Courts <§=>288 — Suit to enjoin obstruction of navigable stream held maintainable in federal court as arising under laws of United States (33 USCA §§ 401, 406).
Suit by lumber company to enjoin obstruction of navigable stream which company used, on ground that no permit bad been obtained for the obstruction, was, under 33 USCA §§ 401, 406 (Comp. St. §§ 9917, 9971), maintainable in the District Court, as one arising under the laws of the United States.
3. Navigable waters <§=>26(1) — Suit to enjoin obstruction of navigable stream and for damages held maintainable in equity, both as to granting of injunction and damages (33 USCA §§ 401,406).
Suit by lumber company against canal company and city to enjoin obstruction of navigable stream, under 33 USCA §§ 401, 406 (Comp. St. §§ 9017, 9971), on account of defendant’s failure to procure required permit, was maintainable on equity side of the court, and equity could retain case to grant relief by way of damages prayed for, which could not he obtained in equity, except for the presence of the equitable feature of the case.
4. Navigable waters <@=26(3) — Lumber company held not entitled to loss of profits from closing mill due to obstruction of navigable stream, where condition of water from another cause would have prevented operation of mill (33 USCA §§ 401, 406).
In suit by lumber company under 33 USCA §§ 401, 406 (Comp. St. §§. 9917, 9971), for obstruction by sand dam of navigable stream, which plaintiff used for conveying logs to its mill, plaintiff’s damages held limited to expense incurred in raising logs, which had sunk in river as result of the obstruction, and loss of profits on account of shutting down of mill was not recoverable, where evidence showed polluted condition of water backing up along river would have prevented continuance of operation of mill, even if dam had not been constructed.
Appeal from the District Court of the United States for the Eastern District of Texas; William I. Grubb, Judge.
Suit by the Miller & Vidor Lumber Company and others against the Neehes Canal Company and others for an injunction and damages. From an adverse decree, defendant named appeals.
Modified, affirmed, and remanded.
George Chilton, of Beaumont, Tex., for appellant.
A. D. Lipscomb, Oliver J. Todd, and J. B. Morris, City Atty., all of Beaumont, Tex., for appellees.
Before WALKER, BRVAN, and FOSTER, Circuit Judges.
WALKER, Circuit Judge.
The appellee Miller & Vidor Lumber Company, a Texas corporation, herein called the Lumber Company, filed in the court below its amended bill against the appellant, Neehes Canal Company, a Texas corporation, the city of Beaumont, Texas, a Texas municipal corporation, and the Beaumont Irrigation Company, a Texas corporation, praying an injunction restraining the parties sued from obstructing or maintaining in the Neehes river, without express authority from the Legislature of Texas and from the United States government, any embankment, dam, dike, or other obstruction preventing the free and open navigation of that river at all times by the Lumber Company, and for judgment against the parties sued for damages alleged to have been sustained by appellee from a dam alleged to have been erected in that river prior to the filing of the bill. The suit resulted in a decree which denied relief against the city of Beaumont and the Beaumont Irrigation Company, awarded against the appellant damages in a lump sum for the loss of profits which would have resulted from the operation of its mill near Beaumont during the time it was shut down, as stated below, for its expenses in raising logs which sank in the river, as stated below, and for depreciation in the value of its logs in the woods, which 'it was unable promptly to bring to its mill by reason of the dam mentioned, and dismissed the amended bill in so far as it sought an injunction, without prejudice to the Lumber Company again applying for an injunction in ease another structure should be threatened in the future, which does not comply with the acts of Congress and the orders of the War Department.
The pleadings and evidence show as follows: The city of Beaumont, located on the Neehes river, about 60 miles from the Gulf of Mexico, owns a waterworks system for furnishing water, obtained from that river, to its inhabitants for drinking, domestic, and industrial purposes; its intake being located about 15 miles above the city. The appellant and the Beaumont Irrigation Company are engaged in supplying water for irrigation and industrial purposes, and procure their supplies of water from a bayou which connects with the Neehes river; their intakes being above the city’s and several miles above the mouth of the bayou. The Lumber Company owns and operates a lumber manufacturing plant located a short distance below the city of Beaumont, procures its supply of logs for its plant from timber lands located on the Neehes river more than 20 miles above Beaumont, and transports its logs in rafts by means of the Neehes river to its mill. In 1925 there was an unusually prolonged drought in East Texas, lasting throughout the summer of that year. During that drought salt water from the Gulf of Mexieo, polluted with sewage, dead fish, etc., made its way up the river above Beaumont. When it was discovered that the progress up the river of the polluted salt water was threatening to pollute the water supply of the city, of the appellant, and of the Beaumont Irrigation Company, the city, in co-operation with the appellant, without obtaining the permit required by the statute (U. S. C. tit. 33, § 401 [33 USCA § 401; Comp. St. § 9971]), constructed a sand dam across the Neehes about one mile below the city’s intake. If the progress of the pollute ed salt water up the river had not been arrested, the water supply of the city and of the appellant soon would have been rendered unfit for use for drinking, irrigation, or industrial purposes.
When passage down the river was closed by the dam, the Lumber Company had in the river logs in rafts, some of which sank by reason of the obstruction created by the dam, and on hand at its plant sufficient timber to enable it to run for some time. When that supply of timber was used up, its mill was shut down about 26 days, until timber could be floated around the dam through a canal, with locks, which was constructed. During that time the Lumber Company was getting the water required for the operation of its plant from the Magnolia Petroleum Company, which during that time was getting its fresh water supply from the city waterworks. After the amended bill was filed, and before the rendition of the decree appealed from, the above-mentioned dam was washed out by freshets. The evidence adduced persuasively indicates that, if the progress up the river of the polluted salt water had not* been arrestedi at or about the time the dam across the river was completed, the water supply upon which the Lumber Company was dependent for the operation of its mill would soon have been cut off, because the water available was unfit for use, and that company, for the lack of a usable supply of water for itself and its employees, could not have continued to operate its mill during the time it was shut down. We do not think that that evidence warrants findings that, but for the dam, the Lumber Company, under then existing conditions, could have kept its mill in operation during the period it was shut down, and would have prevented the deterioration of the cut timber which remained in the woods while it could not be floated down the river because of the obstruction caused by the dam.
The statute forbids the construction, in the absence of a prescribed permit, of such an obstruction of a navigable stream as the above-mentioned dam, and provides for the removal of such a structure being enforced by an injunction of a district court. U. S. C. tit. 33, §§ 401, 406 (33 USCA §§ 401, 406; Comp. St. §§ 9917, 9971). The Lumber Company, being the user of the navigable stream which was obstructed in violation of the statute, was a beneficiary of the statute forbidding its obstruction, and the remedy given by the statute was available in behalf of the Lumber Company. The suit was maintainable in the court below as one arising under the laws of the United States, as a right asserted and a remedy sought by the amended bill were based on acts of Congress. Cummings v. Chicago, 188 U. S. 410, 23 S. Ct. 472, 47 L. Ed. 525. When the suit was brought it was maintainable on the equity side of the court, as under the state of facts alleged in the amended bill the equitable remedy of injunction was grantable. The case, being properly in a court of equity, could he retained to grant relief which would not be grantable, but for the presence of the equitable feature when the suit was brought.
We are of opinion that the expense incurred by the Lumber Company in raising its logs, which sank in the river as above stated, was attributable to the unlawful obstruction created by the dam, in the unlawful construction of which appellant participated, and that the court was not in error in awarding against appellant damages so caused. As above indicated, we are not of opinion that the evidence warranted awards of damages for the Lumber Company’s loss of profits during the time its mill was shut down, or for the depreciation in the value of its logs, the movement of which from where they were cut was delayed by the dam. The decree is modified, by striking the parts of it allowing to the Lumber Company damages for loss of profits and for depreciation of the value of its logs in the woods. As so modified, the decree is affirmed, and the cause is remanded, with direction that the court find from the evidence the amount of expense incurred by the Lumber Company in raising its logs, which sank in the river by reason of the obstruction created by the dam, and insert the amount so found in place of the amount awarded by the decree appealed from.
Modified, affirmed, and remanded.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
sc_issue_8 | 13 | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
AARON v. SECURITIES AND EXCHANGE COMMISSION
No. 79-66.
Argued February 25, 1980
Decided June 2, 1980
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 702. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Brennan, and Marshall, JJ., joined, post, p. 703.
Barry M. Fallick argued the cause and filed briefs for petitioner.
Ralph C. Ferrara argued the cause for respondent. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Geller, Stephen M. Shapiro, Paul Gonson, and Jacob H. Stillman
Briefs of amici curiae urging reversal were filed by John M. Cannon for the Mid-America Legal Foundation; by Kenneth J. Bidkin and Louis A. Craco for the American Institute of Certified Public Accountants; and by Milton F. Freeman, Werner Kronstein, and Richard 0. Scribner for the Securities Industry Association.
Mr. Justice Stewart
delivered the opinion of the Court.
The issue in this case is whether the Securities and Exchange Commission (Commission) is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17 (a) of the Securities Act of 1933 (1933 Act), § 10 (b) of the Securities Exchange Act of 1934 (1934 Act), and Commission Rule 10b-5 promulgated under that section of the 1934 Act.
I
When the events giving rise to this enforcement proceeding occurred, the petitioner was a managerial employee at E. L. Aaron & Co. (the firm), a registered broker-dealer with its principal office in New York City. Among other responsibilities at the firm, the petitioner was charged with supervising the sales made by its registered representatives and maintaining the so-called “due diligence” files for those securities in which the firm served as a market maker. One such security was the common stock of Lawn-A-Mat Chemical & Equipment Corp. (Lawn-A-Mat), a company engaged in the business of selling lawn-care franchises and supplying its franchisees with products and equipment.
Between November 1974 and September 1975, two registered representatives of the firm, Norman Schreiber and Donald Jacobson, conducted a sales campaign in which they repeatedly made false and misleading statements in an effort to solicit orders for the purchase of Lawn-A-Mat common stock. During the course of this promotion, Schreiber and Jacobson informed prospective investors that Lawn-A-Mat was planning or in the process of manufacturing a new type of small car and tractor, and that the car would be marketed within six weeks. Lawn-A-Mat, however, had no such plans. The two registered representatives also made projections of substantial increases in the price of Lawn-A-Mat common stock and optimistic statements concerning the company’s financial condition. These projections and statements were without basis in fact, since Lawn-A-Mat was losing money during the relevant period.
Upon receiving several complaints from prospective investors, an officer of Lawn-A-Mat informed Schreiber and Jacobson that their statements were false and misleading and requested them to cease making such statements. This request went unheeded,
Thereafter, Milton Kean, an attorney representing Lawn-A-Mat, communicated with the petitioner twice by telephone. In these conversations, Kean informed the petitioner that Schreiber and Jacobson were making false and misleading statements and described the substance of what they were saying. The petitioner, in addition to being so informed by Kean, had reason to know that the statements were false, since he knew that the reports in Lawn-A-Mat’s due diligence file indicated a deteriorating financial condition and revealed no plans for manufacturing a new car and tractor. Although assuring Kean that the misrepresentations would cease, the petitioner took no affirmative steps to prevent their recurrence. The petitioner’s only response to the telephone calls was to inform Jacobson of Kean’s complaint and to direct him to communicate with Kean. Otherwise, the petitioner did nothing to prevent the two registered representatives under his direct supervision from continuing to make false and misleading statements in promoting Lawn-A-Mat common stock.
In February 1976, the Commission filed a complaint in the District Court for the Southern District of New York against the petitioner and seven other defendants in connection with the offer and sale of Lawn-A-Mat common stock. In seeking preliminary and final injunctive relief pursuant to § 20 (b) of the 1933 Act and § 21 (d) of the 1934 Act, the Commission alleged that the petitioner had violated and aided and abetted violations of three provisions — § 17 (a) of the 1933 Act, § 10 (b) of the 1934 Act, and Commission Rule 10b-5 promulgated under that section of the 1934 Act. The gravamen of the charges against the petitioner was that he knew or had reason to know that the employees under his supervision were engaged in fraudulent practices, but failed to take adequate steps to prevent those practices from continuing. Before commencement of the trial, all the defendants except the petitioner consented to the entry of permanent injunctions against them.
Following a bench trial, the District Court found that the petitioner had violated and aided and abetted violations of § 17 (a), § 10 (b), and Rule 10b-5 during the Lawn-A-Mat sales campaign and enjoined him from future violations of these provisions. The District Court’s finding of past violations was based upon its factual finding that the petitioner had intentionally failed to discharge his supervisory responsibility to stop Schreiber and Jacobson from making statements to prospective investors that the petitioner knew to be false and misleading. Although noting that negligence alone might suffice to establish a violation of the relevant provisions in a Commission enforcement action, the District Court concluded that the fact that the petitioner “intentionally failed to terminate the false and misleading statements made by Schreiber and Jacobson, knowing them to be fraudulent, is sufficient to establish his scienter under the securities laws.” As to the remedy, even though the firm had since gone bankrupt and the petitioner was no longer working for a broker-dealer, the District Court reasoned that injunctive relief was warranted in light of “the nature and extent of the violations . . . , the [petitioner’s] failure to recognize the wrongful nature of his conduct and the likelihood of the [petitioner’s] repeating his violative conduct.”
The Court of Appeals for the Second Circuit affirmed the judgment. 605 F. 2d 612. Declining to reach the question whether the petitioner’s conduct would support a finding of scienter, the Court of Appeals held instead that when the Commission is seeking injunctive relief, “proof of negligence alone will suffice” to establish a violation of § 17 (a), § 10 (b), and Rule 10b-5. Id., at 619. With regard to § 10 (b) and Rule 10b-5, the Court of Appeals noted that this Court’s opinion in Ernst & Ernst v. Hochfelder, 425 U. S. 185, which held that an allegation of scienter is necessary to state a private cause of action for damages under § 10 (b) and Rule 10b-5, had expressly reserved the question whether scienter must be alleged in a suit for injunctive relief brought by the Commission. Id., at 194, n. 12. The conclusion of the Court of Appeals that the scienter requirement of Hochf elder does not apply to Commission enforcement proceedings was said to find support in the language of § 10 (b), the legislative history of the 1934 Act, the relationship between § 10 (b) and the overall enforcement scheme of the securities laws, and the “compelling distinctions between private damage actions and government injunction actions.” For its holding that sci-enter is not a necessary element in a Commission injunctive action to enforce § 17 (a), the Court of Appeals relied on its earlier decision in SEC v. Coven, 581 F. 2d 1020 (1978). There that court had noted that the language of § 17 (a) contains nothing to suggest a requirement of intent and that, in enacting § 17 (a), Congress had considered a scienter requirement, but instead “opted for liability without willfulness, intent to defraud, or the like.” Id., at 1027-1028. Finally, the Court of Appeals affirmed the District Court’s holding that, under all the facts and circumstances of this case, the Commission was entitled to injunctive relief. 605 F. 2d, at 623-624.
We granted certiorari to resolve the conflict in the federal courts as to whether the Commission is required to establish scienter — an intent on the part of the defendant to deceive, manipulate, or defraud — as an element of a Commission enforcement action to enjoin violations of § 17 (a), § 10 (b), and Rule 10b-5. 444 U. S. 914.
II
The two substantive statutory provisions at issue here are § 17 (a) of the 1933 Act, 48 Stat. 84, as amended, 15 IT. S. C. § 77q (a), and § 10 (b) of the 1934 Act, 48 Stat. 891, 15 U. S. C. § 78j (b). Section 17 (a), which applies only to sellers, provides:
“It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
“(1) to employ any device, scheme, or artifice to defraud, or
“(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.”
Section 10 (b), which applies to both buyers and sellers, makes it “unlawful for any person ... [t]o use or employ, in connection with the purchase or sale of any security . . ., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” Pursuant to its rulemaking power under this section, the Commission promulgated Rule 1 Ob-5, which now provides:
“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
“(a) To employ any device, scheme, artifice to defraud,
“(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 CFR § 240.1Ob-5 (1979).
The civil enforcement mechanism for these provisions consists of both express and implied remedies. One express remedy is a suit by the Commission for injunctive relief. Section 20 (b) of the 1933 Act, 48 Stat. 86, as amended, as set forth in 15 U. S. C. § 77t (b), provides:
“Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter [e. g., § 17 (a)], or of any rule or regulation prescribed under authority thereof, it may in its discretion, bring an action in any district court of the United States ... to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond.”
Similarly, § 21 (d) of the 1934 Act, 48 Stat. 900, as amended, 15 U. S. C. § 78u (d), authorizes the Commission to seek injunctive relief whenever it appears that a person “is engaged or is about to engage in acts or practices constituting” a violation of the 1934 Act (e. g., § 10 (b)), or regulations promulgated thereto (e. g., Rule 10b-5), and requires a district court “upon a proper showing” to grant injunctive relief.
Another facet of civil enforcement is a private cause of action for money damages. This remedy, unlike the Commission injunctive action, is not expressly authorized by statute, but rather has been judicially implied. See Ernst & Ernst v. Hochfelder, 425 U. S., at 196-197. Although this Court has repeatedly assumed the existence of an implied cause of action under § 10 (b) and Rule 10b-5, see Ernst & Ernst v. Hochfelder, supra; Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730; Affiliated Ute Citizens v. United States, 406 U. S. 128, 150-154; Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6, 13, n. 9, it has not had occasion to address the question whether a private cause of action exists under § 17 (a). See Blue Chip Stamps v. Manor Drug Stores, supra, at 733, n. 6.
The issue here is whether the Commission in seeking injunc-tive relief either under § 20 (b) for violations of § 17 (a), or under § 21 (d) for violations of § 10 (b) or Rule 10b-5, is required to establish scienter. Resolution of that issue could depend upon (1) the substantive provisions of -§ 17 (a), § 10 (b), and Rule 10b-5, or (2) the statutory provisions authorizing injunctive relief “upon a proper showing,” § 20 (b) and §21 (d). We turn to an examination of each to determine the extent to which they may require proof of scienter.
A
In determining whether scienter is a necessary element of a violation of § 10 (b) and Rule 10b-5, we do not write on a clean slate. Rather, the starting point for our inquiry is Ernst & Ernst v. Hochfelder, supra, a case in which the Court concluded that a private cause of action for damages will not lie under § 10 (b) and Rule 10b-5 in the absence of an allegation of scienter. Although the issue presented in the present case was expressly reserved in Hochfelder, supra, at 193, n. 12, we nonetheless must be guided by the reasoning of that decision.
The conclusion in Hochfelder that allegations of simple negligence could not sustain a private cause of action for damages under § 10 (b) and Rule 10b-5 rested on several grounds. The most important was the plain meaning of the language of § 10 (b). It was the view of the Court that the terms “manipulative,” “device,” and “contrivance” — whether given their commonly accepted meaning or read as terms of art — quite clearly evinced a congressional intent to proscribe only “knowing or intentional misconduct.” 425 U. S., at 197-199. This meaning, in fact, was thought to be so unambiguous as to suggest that “further inquiry may be unnecessary.” Id., at 201.
The Court in Hochfelder nonetheless found additional support for its holding in both the legislative history of § 10 (b) and the structure of the civil liability provisions in the 1933 and 1934 Acts. The legislative history, though “bereft of any explicit explanation of Congress’ intent,” contained “no indication . . . that § 10 (b) was intended to proscribe conduct not involving scienter.” Id., at 201-202. Rather, as the Court noted, a spokesman for the drafters of the predecessor of § 10 (b) described its function as a “ ‘catch-all clause to prevent manipulative devices.’ ” Id., at 202. This description, as well as various passages in the Committee Reports concerning the evils to which the 1934 Act was directed, evidenced a purpose to proscribe only knowing or intentional misconduct. Moreover, with regard to the structure of the 1933 and 1934 Acts, the Court observed that in each instance in which Congress had expressly created civil liability, it had specified the standard of liability. To premise civil liability under § 10 (b) on merely negligent conduct, the Court concluded, would run counter to the fact that wherever Congress intended to accomplish that result, it said so expressly and subjected such actions to significant procedural restraints not applicable to § 10 (b). Id., at 206-211. Finally, since the Commission’s rulemaking power was necessarily limited by the ambit of its statutory authority, the Court reasoned that Rule 10b-5 must likewise be restricted to conduct involving scienter.
In our view, the rationale of Hochfelder ineluctably leads to the conclusion that scienter is an element of a violation of § 10 (b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief sought. Two of the three factors relied upon in Hochfelder — the language of § 10 (b) and its legislative history — are applicable whenever a violation of § 10 (b) or Rule 10b-5 is alleged, whether in a private cause of action for damages or in a Commission injunctive action under § 21 (d). In fact, since Hochfelder involved an implied cause of action that was not within the contemplation of the Congress that enacted § 10 (b), id., at 196, it would be quite anomalous in a case like the present one, involving as it does the express remedy Congress created for § 10 (b) violations, not to attach at least as much significance to the fact that the statutory language and its legislative history support a scienter requirement.
The Commission argues that Hochfelder, which involved a private cause of action for damages, is not a proper guide in construing § 10 (b) in the present context of a Commission enforcement action for injunctive relief. We are urged instead to look to SEC v. Capital Gains Research Bureau, 375 U. S. 180. That case involved a suit by the Commission for injunc-tive relief to enforce the prohibition in § 206 (2) of the Investment Advisers Act of 1940, 15 U. S. C. § 80b-6, against any act or practice of an investment adviser that “operates as a fraud or deceit upon any client or prospective client.” The injunction sought in Capital Gains was to compel disclosure of a practice known as “scalping,” whereby an investment adviser purchases shares of a given security for his own account shortly before recommending the security to investors as a long-term investment, and then promptly sells the shares at a profit upon the rise in their market value following the recommendation.
The issue in Capital Gains was whether in an action for injunctive relief for violations of § 206 (2) the Commission must prove that the defendant acted with an intent to defraud. The Court held that a showing of intent was not required. This conclusion rested upon the fact that the legislative history revealed that the “Investment Advisers Act of 1940 . . . reflects a congressional recognition ‘of the delicate fiduciary nature of an investment advisory relationship/ as well as a congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser — consciously or unconsciously — to render advice which was not disinterested.” 375 U. S., at 191-192 (footnote omitted). To require proof of intent, the Court reasoned, would run counter to the expressed intent of Congress.
The Court added that its conclusion was “not in derogation of the common law of fraud.” Id., at 192. Although recognizing that intent to defraud was a necessary element at common law to recover money damages for fraud in an arm’s-length transaction, the Court emphasized that the Commission’s action was not a suit for damages, but rather a suit for an injunction in which the relief sought was the “mild prophylactic” of requiring a fiduciary to disclose his transactions in stocks he was recommending to his clients. Id., at 193. The Court observed that it was not necessary in a suit for “equitable or prophylactic relief” to establish intent, for “[f)raud has a broader meaning in equity [than at law] and intention to defraud or to misrepresent is not a necessary element.” Ibid., quoting W. De Funiak, Handbook of Modern Equity 235 (2d ed. 1956). Moreover, it was not necessary, the Court said, in a suit against a fiduciary such as an investment adviser, to establish all the elements of fraud that would be required in a suit against a party to an arm’s-length transaction. Finally, the Court took cognizance of a “growing recognition by common-law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill-suited to the sale of such intangibles as advice and securities, and that, accordingly, the doctrines must be adapted to the merchandise in issue.” 375 U. S., at 194. Unwilling to assume that Congress was unaware of these developments at common law, the Court concluded that they “reinforce [d]” its holding that Congress had not sought to require a showing of intent in actions to enjoin violations of §206 (2). Id., at 195.
The Commission argues that the emphasis in Capital Gains upon the distinction between fraud at law and in equity should guide a construction of § 10 (b) in this suit for injunctive relief. We cannot, however, draw such guidance from Capital Gains for several reasons. First, wholly apart from its discussion of the judicial treatment of “fraud” at law and in equity, the Court in Capital Gains found strong support in the legislative history for its conclusion that the Commission need not demonstrate intent to enjoin practices in violation of § 206 (2). By contrast, as the Court in Hochfelder noted, the legislative history of § 10 (b) points towards a scienter requirement. Second, it is quite clear that the language in question in Capital Gains, “any . .. practice . .. which operates as a fraud or deceit,” (emphasis added) focuses not on the intent of the investment adviser, but rather on the effect of a particular practice. Again, by contrast, the Court in Hoch-felder found that the language of § 10 (b) — particularly the terms “manipulative,” “device,” and “contrivance” — clearly refers to “knowing or intentional misconduct.” Finally, insofar as Capital Gains involved a statutory provision regulating the special fiduciary relationship between an investment adviser and his client, the Court there was dealing with a situation in which intent to defraud would not have been required even in a common-law action for money damages. Section 10 (b), unlike the provision at issue in Capital Gains, applies with equal force to both fiduciary and nonfidueiary transactions in securities. It is our view, in sum, that the controlling precedent here is not Capital Gains, but rather Hochf elder. Accordingly, we conclude that scienter is a necessary element of a violation of § 10 (b) and Rule 10b-5.
B
In determining whether proof of scienter is a necessary element of a violation of § 17 (a), there is less precedential authority in this Court to guide us. But the controlling principles are well settled. Though cognizant that “Congress intended securities legislation enacted for the purpose of avoiding frauds to be construed ‘not technically and restrictively, but flexibly to effectuate its remedial purposes,'” Affiliated Ute Citizens v. United States, 406 U. S., at 151, quoting, SEC v. Capital Gains Research Bureau, 375 U. S., at 195, the Court has also noted that “generalized references to the ‘remedial purposes’ ” of the securities laws “will not justify reading a provision ‘more broadly than its language and the statutory scheme reasonably permit.’ ” Touche Ross & Co. v. Redington, 442 U. S. 560, 578, quoting, SEC v. Sloan, 436 U. S. 103, 116. Thus, if the language of a provision of the securities laws is sufficiently clear in its context and not at odds with the legislative history, it is unnecessary “to examine the additional considerations of ‘policy’ . . . that may have influenced the lawmakers in their formulation of the statute.” Ernst & Ernst v. Hochfelder, 425 U. S., at 214, n. 33.
The language of § 17 (a) strongly suggests that Congress contemplated a scienter requirement under § 17 (a)(1), but not under § 17 (a)(2) or § 17 (a)(3). The language of § 17 (a)(1), which makes it unlawful “to employ any device, scheme, or artifice to defraud,” plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct. Even if it be assumed that the term “defraud” is ambiguous, given its varied meanings at law and in equity, the terms “device,” “scheme,” and “artifice” all connote knowing or intentional practices. Indeed, the term “device,” which also appears in § 10 (b), figured prominently in the Court's conclusion in Hochfelder that the plain meaning of § 10 (b) embraces a scienter requirement. Id., at 199.
By contrast, the language of § 17 (a)(2), which prohibits any person from obtaining money or property “by means of any untrue statement of a material fact or any omission to state a material fact,” is devoid of any suggestion whatsoever of a scienter requirement. As a well-known commentator has noted, “[t]here is nothing on the face of Clause (2) itself which smacks of scienter or intent to defraud.” 3 L. Loss, Securities Regulation 1442 (2d ed. 1961). In fact, this Court in Hochfelder pointed out that the similar language of Rule 10b-5 (b) “could be read as proscribing . . . any type of material misstatement or omission . . . that has the effect of defrauding investors, whether the wrongdoing was intentional or not.” 425 U. S., at 212.
Finally, the language of § 17 (a) (3), under which it is unlawful for any person “to engage in any transaction, practice, or course of business which operates or would operate q,s a fraud or deceit,” (emphasis added) quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. This reading follows directly from Capital Gains, which attributed to a similarly worded provision in § 206 (2) of the Investment Advisers Act of 1940 a meaning that does not require a “showing [of] deliberate dishonesty as a condition precedent to protecting investors.” 375 U. S., at 200.
It is our view, in sum, that the language of § 17 (a) required scienter under § 17 (a)(1), but not under § 17 (a)(2) or § 17 (a) (3). Although the parties have urged the Court to adopt a uniform culpability requirement for the three subparagraphs of § 17 (a), the language of the section is simply not amenable to such an interpretation. This is not the first time that this Court has had occasion to emphasize the distinctions among the three subparagraphs of § 17 (a). In United States v. Naftalin, 441 U. S. 768, 774, the Court noted that each sub-paragraph of § 17 (a) “proscribes a distinct category of misconduct. Each succeeding prohibition is meant to cover additional kinds of illegalities — not to narrow the reach of the prior sections.” (Footnote omitted.) Indeed, since Congress drafted § 17 (a) in such a manner as to compel the conclusion that scienter is required under one subparagraph but not under the other two, it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what it so plainly seems to say.
We find no such expression of congressional intent in the legislative history. The provisions ultimately enacted as § 17 (a) had their genesis in § 13 of identical bills introduced simultaneously in the House and Senate in 1933. H. R. 4314, 73d Cong., 1st Sess. (Mar. 29, 1933); S. 875, 73d Cong., 1st Sess. (Mar. 29, 1933) , As originally drafted, § 13 would have made it unlawful for any person
“willfully to employ any device, scheme, or artifice to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business . . . which operates or would operate as a fraud upon the purchaser.”
Hearings on these bills were conducted by both the House Interstate and Foreign Commerce Committee and the Senate Banking and Currency Committee.
The House and Senate Committees reported out different versions of § 13. The Senate Committee expanded its ambit by including protection against the intentionally fraudulent practices of a “dummy,” a person holding legal or nominal title but under a moral or legal obligation to act for someone else. As amended by the Senate Committee, § 13 made it unlawful for any person
“willfully to employ any device, scheme, or artifice or to employ any 'dummy’, or to act as any such 'dummy', with the intent to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business . . . which operates or would operate as a fraud upon the purchaser. . . ,”
See S. 875, 73d Cong., 1st Sess. (Apr. 27, 1933); S. Rep. No. 47, 73d Cong., 1st Sess., 4-5 (1933). The House Committee retained the original version of § 13, except that the word “willfully” was deleted from the beginning of the provision. See H. R. 5480, 73d Cong., 1st Sess., § 16 (a) (May 4, 1933). It also rejected a suggestion that the first clause, “to employ any device, scheme, or artifice,” be modified by the phrase, “with intent to defraud.” See ibid.; Federal Securities Act: Hearings on H. R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 146 (1933). The House and Senate each adopted the version of the provision as reported out by its Committee. The Conference Committee then adopted the House version with a minor modification not relevant here, see H. R. Conf. Rep. No. 152, 73d Cong., 1st Sess., 12, 27 (1933), and it was later enacted into law as § 17 (a) of the 1933 Act.
The Commission argues that the deliberate elimination of the language of intent reveals that Congress considered and rejected a scienter requirement under all three clauses of § 17 (a). This argument, however, rests entirely on inference, for the Conference Report sheds no light on what the Conference Committee meant to do about the question of scienter under § 17 (a). The legislative history thus gives rise to the equally plausible inference that the Conference Committee concluded that (1) in light of the plain meaning of § 17 (a)(1), the language of intent — “willfully” and “with intent to defraud” — was simply redundant, and (2) with regard to §17 (a)(2) and §17 (a)(3), a “willful[ness]” requirement was not to be included. It seems clear, therefore, that the legislative history, albeit ambiguous, may be read ill a manner entirely consistent with the plain meaning of § 17 (a). In the absence of a conflict between reasonably plain meaning and legislative history, the words of the statute must prevail.
C
There remains to be determined whether the provisions authorizing injunctive relief, § 20 (b) of the 1933 Act and § 21 (d) of the 1934 Act, modify the substantive provisions at issue in this case so far as scienter is concerned.
The language and legislative
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer: |
sc_decisiondirection | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
HINES et al. v. ANCHOR MOTOR FREIGHT, INC., et al.
No. 74-1025.
Argued November 12, 1975
Decided March 3, 1976
White, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, Blackmun, and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 572. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 573. Stevens, J., took no part in the consideration or decision of the case.
Niki Z. Schwartz argued the cause and filed briefs for petitioners.
Bernard S. Goldfarb argued the cause and filed a brief for respondent Anchor Motor Freight, Inc. David Leo Uelmen and Eugene Green filed a brief for respondent Local Union No. 377. David Previant and George Kauj-mann filed a brief for respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.
Arthur L. Fox II filed a brief for Prod, Inc., et al. as amici curiae urging reversal.
Mr. Justice White
delivered the opinion of the Court.
The issue here is whether a suit against an employer by employees asserting breach of a collective-bargaining contract was properly dismissed where the accompanying complaint against the union for breach of duty of fair representation has withstood the union’s motion for summary judgment and remains to be tried.
I
Petitioners, who were formerly employed as truck drivers by respondent Anchor Motor Freight, Inc. (Anchor), were discharged on June 5, 1967. The applicable collective-bargaining contract forbade discharges without just cause. The company charged dishonesty. The practice at Anchor was to reimburse drivers for money spent for lodging while the drivers were on the road overnight. Anchor’s assertion was that petitioners had sought reimbursement for motel expenses in excess of the actual charges sustained by them. At a meeting between the company and the union, Local 377, International Brotherhood of Teamsters (Union), which was also attended by petitioners, Anchor presented motel receipts previously submitted by petitioners which were in excess of the charges shown on the motel’s registration cards; a notarized statement of the motel clerk asserting the accuracy of the registration cards; and an affidavit of the motel owner affirming that the registration cards were accurate and that inflated receipts had been furnished petitioners. The Union claimed petitioners were innocent and opposed the discharges. It was then agreed that the matter would be presented to the joint arbitration committee for the area, to which the collective-bargaining contract permitted either party to submit an unresolved grievance. Pending this hearing, petitioners were reinstated. Their suggestion that the motel be investigated was answered by the Union representatives’ assurances that "there was nothing to worry about” and that they need not hire their own attorney.
A hearing before the joint area committee was held on July 26, 1967. Anchor presented its case. Both the Union and petitioners were afforded an opportunity to present their case and to be heard. Petitioners denied their dishonesty, but neither they nor the Union presented any other evidence contradicting the documents presented by the company. The committee sustained the discharges. Petitioners then retained an attorney and sought rehearing based on a statement by the motel owner that he had no personal knowledge of the events, but that the discrepancy between the receipts and the registration cards could have been attributable to the motel clerk’s recording on the cards less than was actually paid and retaining for himself the difference between the amount receipted and the amount recorded. The committee, after hearing, unanimously denied rehearing “because there was no new evidence presented which would justify a reopening of this case.” App. 212.
There were later indications that the motel clerk was in fact the culprit; and the present suit was filed in June 1969, against Anchor, the Union, and its International. The complaint alleged that the charges of dishonesty made against petitioners by Anchor were false, that there was no just cause for discharge, and that the discharges had been in breach of contract. It was also asserted that the falsity of the charges could have been discovered with a minimum of investigation, that the Union had made no effort to ascertain the truth of the charges, and that the Union had violated its duty of fair representation by arbitrarily and in bad faith depriving petitioners of their employment and permitting their discharge without sufficient proof.
The Union denied the charges and relied on the decision of the joint area committee. Anchor asserted that petitioners had been properly discharged for just cause. It also defended on the ground that petitioners, diligently and in good faith represented by the Union, had unsuccessfully resorted to the grievance and arbitration machinery provided by the contract and that the adverse decision of the joint arbitration committee was binding upon the Union and petitioners under the contractual provision declaring that “[a] decision by a majority of a Panel of any of the Committees shall be final and binding on all parties, including the employee and/or employees affected.” Discovery followed, including a deposition of the motel clerk revealing that he had falsified the records and that it was he who had pocketed the difference between the sums shown on.the receipts and the registration cards. Motions for summary judgment filed by Anchor and the Unions were granted by the District Court on the ground that the decision of the arbitration committee was final and binding on the employees and “for failure to show facts comprising bad faith, arbitrariness or perfunctoriness on the part of the Unions.” 72 CCH Lab. Cas. ¶ 13,987, p. 28,131 (ND Ohio 1973). Although indicating that the acts of the Union “may not meet professional standards of competency, and while it might have been advisable for the Union to further investigate the charges . . . ,” the District Court concluded that the facts demonstrated at most bad judgment on the part of the Union, which was insufficient to prove a breach of duty or make out a prima facie case against it. Id., at 28,132.
After reviewing the allegations and the record before it, the Court of Appeals concluded that there were sufficient facts from which bad faith or arbitrary conduct on the part of the local Union could be inferred by the trier of fact and that petitioners should have been afforded an opportunity to prove their charges. To this extent the judgment of the District Court was reversed. The Court of Appeals affirmed the judgment in favor of Anchor and the International. Saying that petitioners wanted to relitigate their discharges because of the recantation of the motel clerk, the Court of Appeals, quoting from its prior opinion in Balowski v. International Union, 372 F. 2d 829 (CA6 1967), concluded that the finality provision of collective-bargaining contracts must be observed because there was “[n]o evidence of any misconduct on the part of the employer . . .” and wholly insufficient evidence of any conspiracy between the Union and Anchor. 506 F. 2d, at 1157, 1158.
It is this judgment of the Court of Appeals with respect to Anchor that is now before us on our limited grant of the employees’ petition for writ of certiorari. 421 U. S. 928 (1975). We reverse that judgment.
II
Section 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185, provides for suits in the district courts for violation of collective-bargaining contracts between labor organizations and employers without regard to the amount in controversy. This provision reflects the interest of Congress in promoting “a higher degree of responsibility upon the parties to such agreements . . ..” S. Rep. No. 105, 80th Cong., 1st Sess., .17 (1947). The strong policy favoring judicial enforcement of collective-bargaining contracts was sufficiently powerful to sustain the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board. Smith v. Evening News Assn., 371 U. S. 195 (1962); Atkinson v. Sinclair Rfg. Co., 370 U. S. 238 (1962); Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962); Charles Dowd Box Co. v. Courtney, 368 U. S. 502 (1962). Section 301 contemplates suits by and against individual employees as well as between unions and employers; and contrary to earlier indications § 301 suits encompass those seeking to vindicate “uniquely personal” rights of employees such as wages, hours, overtime pay, and wrongful discharge. Smith v. Evening News Assn., supra, at 198-200. Petitioners' present suit against the employer was for wrongful discharge and is the kind of case Congress provided for in § 301.
Collective-bargaining contracts, however, generally contain procedures for the settlement of disputes through mutual discussion and arbitration. These provisions are among those which are to be enforced under § 301. Furthermore, Congress has specified in § 203 (d), 61 Stat. 154, 29 U. S. C. § 173 (d), that “[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes . . . .” This congressional policy “can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” Steelworkers v. American Mfg. Co., 363 U. S. 564, 566 (1960). Courts are not to usurp those functions which collective-bargaining contracts have properly “entrusted to the arbitration tribunal.” Id., at 569. They should not undertake to review the merits of arbitration awards but should defer to the tribunal chosen by the parties finally to settle their disputes. Otherwise “plenary review by a court of the merits would make-meaningless the provisions that the arbitrator’s decision is final, for in reality it would almost never be final.” Steelworkers v. Enterprise Corp., 363 U. S. 593, 599 (1960).
Pursuant to this policy, we later held that an employee could not sidestep the grievance machinery provided in the contract and that unless he attempted to utilize the contractual procedures for settling his dispute with his employer, his independent suit against the employer in the District Court would be dismissed. Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965). Maddox nevertheless distinguished the situation where “the union refuses to press or only perfunctorily presses the individual’s claim .... See Humphrey v. Moore, 375 U. S. 335; Labor Board v. Miranda Fuel Co., 326 F. 2d 172.” Id., at 652 (footnote omitted).
The reservation in Maddox was well advised. The federal labor laws, in seeking to strengthen the bargaining position of the average worker in an industrial economy, provided for the selection of collective-bargaining agents with wide authority to negotiate and conclude collective-bargaining agreements on behalf of all employees in appropriate units, as well as to be the employee’s agent in the enforcement and administration of the contract. Wages, hours, working conditions, seniority, and job security therefore became the business of certified or recognized bargaining agents, as did the contractual procedures for the processing and settling of grievances, including those with respect to discharge.
Necessarily “[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents . . . Ford Motor Co. v. Huffman, 345 U. S. 330, 338 (1953). The union’s broad authority in negotiating and administering effective agreements is “undoubted,” Humphrey v. Moore, 375 U. S. 335, 342 (1964), but it is not without limits. Because “[t]he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all. employees in a bargaining unit,” Vaca v. Sipes, 386 U. S. 171, 182 (1967), the controlling statutes have long beén interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, “the responsibility and duty of fair representation.” Humphrey v. Moore, supra, at 342. The union as the statutory representative of the employees is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Ford Motor Co. v. Huffman, supra, at 338. Since Steele v. Louisville & N. R. Co., 323 U. S. 192 (1944), with respect to the railroad industry, and Ford Motor Co. v. Huffman, supra, and Syres v. Oil Workers, 350 U. S. 892 (1955), with respect to those industries reached by the National Labor Relations Act, the duty of fair representation has served as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, at 182.
Claims of union breach of duty may arise during the life of a contract when individual employees claim wrongful discharge or other improper treatment at the hands of the employer. Contractual remedies, at least in their final stages controlled by union and employer, are normally provided; yet the union may refuse to utilize them or, if it does, assertedly may do so discriminatorily or in bad faith. “The problem then is to determine under what circumstances the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” Vaca v. Sipes, supra, at 185.
Humphrey v. Moore, supra, involved a seniority dispute between the employees of two transportation companies whose operating authorities had been combined. The employees accorded lesser seniority were being laid off. Their grievances were presented to the company and taken by the union to the joint arbitration committee pursuant to contractual provisions very similar to those now before us. The decision was adverse. The employees then brought suit in the state court against the company, the union, and the favored employees, asserting breach of contract by the company and breach of its duty of fair representation by the union. They sought damages and an injunction to prevent implementation of the decision of the joint arbitration committee. The union was charged with dishonest and bad-faith representation of the employees before the joint committee. The unions and the defendant employees asserted the finality of the joint committee’s decision, if not as a final resolution of a dispute in the administration of a contract, as a bargained-for accommodation between the two parties. The state courts issued the injunction. Respondents argued here that “the decision of the Committee was obtained by dishonest union conduct in breach of its duty of fair representation and that a decision so obtained cannot be relied upon as a valid excuse for [their] discharge under the contract.” 375 U. S., at 342. We reversed the judgment of the state court but only after independently determining that the union’s conduct was not a breach of its statutory duties and that the joint committee’s decision was not infirm for that reason. Our conclusion was that the disfavored employees had not proved their case: “Neither the parties nor the Joint Committee exceeded their power under the contract and there was no fraud or breach of duty by the exclusive bargaining agent. The decision of the committee, reached after proceedings adequate under the agreement, is final and binding upon the parties, just as the contract says it is.” Id., at 351.
In Vaca v. Sipes, supra, the discharged employee sued the union alleging breach of its duty of fair representation in that it had refused in bad faith to take the employee’s grievance to arbitration as it could have under the contract. In the course of rejecting the claim that the alleged conduct was arguably an unfair practice within the exclusive jurisdiction of the Labor Board, we ruled that “the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” 386 U. S., at 186 (footnote omitted). This was true even though “the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies . . . ,” for “the employer has committed a wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process ... were it not for the union’s breach of its statutory duty of fair representation . . . .” Id., at 185. We could not “believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract.” Id., at 186. Nor did we “think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements.” Ibid. At the same time “we conclude [d] that a union does not breach its duty of fair representation . . . merely because it settled the grievance short of arbitration.” Id., at 192. “If the individual employee could compel arbitration of his grievance regardless of its merit,” that is, compel both employers and unions to make full use of the contractual provisions for settling disputes by arbitration, “the settlement machinery provided by the contract would be substantially undermined,” for curtailing the “power to settle the majority of grievances short of the costlier and more time-consuming steps” might deter the parties to collective-bargaining agreements from making “provision] for detailed grievance and arbitration procedures of the kind encouraged by L. M. R. A. § 203 (d).” Id., at 191-192. We also expressly indicated that suit against the employer and suit against the union could be joined in one action. Id., at 187.
Ill
Even though under Vaca the employer may not insist on exhaustion of grievance procedures when the union has breached its representation duty, it is urged that when the procedures have been followed and a decision favorable to the employer announced, the employer must be protected from relitigation by the express contractual provision declaring a decision to be final and binding. We disagree. The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract.
It is true that Vaca dealt with a refusal by the union to process a grievance. It. is also true that where the union actually utilizes the grievance and arbitration procedures on behalf of the employee, the focus is no longer on the reasons for the union’s failure to act but on whether, contrary to the arbitrator’s decision, the employer breached the contract and whether there is substantial reason to believe that a union breach of duty contributed to the erroneous outcome of the contractual proceedings. But the judicial remedy in Humphrey v. Moore was sought after the adverse decision of the joint arbitration committee. Our conclusion in that case was not that the committee’s decision was unreviewable. On the contrary, we proceeded on the basis that it was reviewable and vulnerable if tainted by breach of duty on the part of the union, even though the employer had not conspired with the union. The joint committee’s decision was held binding on the complaining employees only after we determined that the union had not been guilty of malfeasance and that its conduct was within the range of acceptable performance by a collective-bargaining agent, a wholly unnecessary determination if the union’s conduct was irrelevant to the finality of the arbitral process.
In Vaca “we accept [ed] the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in a perfunctory fashion,” 386 U. S., at 191, and our ruling that the union had not breached its duty of fair representation in not pressing the employee’s case to the last step of the grievance process stemmed from our evaluation of the manner in which the union had handled the grievance in its earlier stages. Although “the Union might well have breached its duty had it ignored [the employee’s] complaint or had it processed the grievance in a perfunctory manner,” “the Union conclude [d] both that arbitration would be fruitless and that the grievance should be dismissed” only after it had “processed the grievance into the fourth step, attempted to gather sufficient evidence to prove [the employee’s] case, attempted to secure for [him] less vigorous work at the plant, and joined in the employer’s efforts to have [him] rehabilitated.” Id., at 194.
Anchor would have it that petitioners are foreclosed from judicial relief unless some blameworthy conduct on its part disentitles it to rely on the finality rule. But it was Anchor that originated the discharges for dishonesty. If those charges were in error, Anchor has surely played its part in precipitating this dispute. Of course, both courts below held there were no facts suggesting that Anchor either knowingly or negligently relied on false evidence. As far as the record reveals it also prevailed before the joint committee after presenting its case in accordance with what were ostensibly wholly fair procedures. Nevertheless there remains the question whether the contractual protection against re-litigating an arbitral decision binds employees who assert that the process has fundamentally malfunctioned by reason of the bad-faith performance of the union, their statutorily imposed collective-bargaining agent.
Under the rule announced by the Court of Appeals, unless the employer is implicated in the Union’s malfeasance or has otherwise caused the arbitral process to err, petitioners would have no remedy against Anchor even though they are successful in proving the Union’s bad faith, the falsity of the charges against them, and the breach of contract by Anchor by discharging without cause. This rule would apparently govern even in circumstances where it is shown that a union has manufactured the evidence and knows from the start that it is false; or even if, unbeknownst to the employer, the union has corrupted the arbitrator to the detriment of disfavored union members. As is the case where there has been a failure to exhaust, however, we cannot believe that Congress intended to foreclose the employee from his § 301 remedy otherwise available against the employer if the contractual processes have been seriously flawed by the union’s breach of its duty to represent employees honestly and in good faith and without invidious discrimination or arbitrary conduct.
It is urged that the reversal of the Court of Appeals will undermine not only the finality rule but the entire collective-bargaining process. Employers, it is said, will be far less willing to give up their untrammeled right to discharge without cause and to agree to private settlement procedures. But the burden on employees will remain a substantial one, far too heavy in the opinion of some. To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union. As the District Court indicated, this involves more than demonstrating mere errors in judgment.
Petitioners are not entitled to relitigate their discharge merely because they offer newly discovered evidence that the charges against them were false and that in fact they were fired without cause. The grievance processes cannot be expected to be error-free. The finality provision has sufficient force to surmount occasional instances of mistake. But it is quite another matter to suggest that erroneous arbitration decisions must stand even though the employee’s representation by the union has been dishonest, in bad faith, or discriminatory; for in that event error and injustice of the grossest sort would multiply. The contractual system would then cease to qualify as an adequate mechanism to secure individual redress for damaging failure of the employer to abide by the contract. Congress has put its blessing on private dispute settlement arrangements provided in collective agreements, but it was anticipated, we are sure, that the contractual machinery would operate within some minimum levels of integrity. In our view, enforcement of the finality provision where the arbitrator has erred is conditioned upon the union’s having satisfied its statutory duty fairly to represent the employee in connection with the arbitration proceedings. Wrongfully discharged employees would be left without jobs and without a fair opportunity to secure an adequate remedy.
Except for this case the Courts of Appeals have arrived at similar conclusions. As the Court of Appeals for the Ninth Circuit put it in Margetta v. Pam Pam Corp., 501 F. 2d 179, 180 (1974): “To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation.”
Petitioners, if they prove an erroneous discharge and the Union’s breach of duty tainting the decision of the joint committee, are entitled to an appropriate remedy against the employer as well as the Union. It was error to affirm the District Court’s final dismissal of petitioners’ action against Anchor. To this extent the judgment of the Court of Appeals is reversed.
So ordered.
Mb. Justice Stevens took no part in the consideration or decision of this case.
Two of the original petitioners, Burtice A. Hines and Arthur D. Cartwright, are deceased. Charles A. Hines and Chyra J. Cartwright have been substituted as party petitioners. 423 U. S. 816, 982 (1975).
The contractual grievance procedure is set out in Art. 7 of the Central Conference Area Supplement to the National Master Automobile Transporters Agreement. App. 226-233. Grievances were to be taken up by the employee involved and if no settlement was reached, were then to be considered by the business agent of the local union and the employer representative. If the dispute remained unresolved, either party had the right to present the case for decision to the appropriate joint area arbitration committee. These committees are organized on a geographical area basis and hear grievances in panels made up of an equal number of representatives of the parties to the collective-bargaining agreement. Cases that deadlocked before the joint area committee could be taken to a panel of the national joint arbitration committee, composed like the area committee panels of an equal number of representatives of the parties to the agreement. If unresolved there, they would be resolved by a panel including an impartial arbitrator. The joint arbitration committee for the Detroit area is involved in this case.
The provision is contained in § 5 of Art. 7. App. 231. In addition, § 7 (e) of the same article provides that all decisions of the national and area committees with respect to the interpretation of the contract “shall be final and conclusive and binding upon the •Employer and the Union, and the employees involved.” App. 232.
As summarized by the Court of Appeals, the allegations relied on were:
“They consist of the motel clerk’s admission, made a year after the discharge was upheld in arbitration, that he, not plaintiffs, pocketed the money; the claim of the union’s failure to investigate the motel clerk’s original story implicating plaintiffs despite their requests; the account of the union officials’ assurances to plaintiffs that ‘they had nothing to worry about’ and ‘that there was no need for them to investigate’; the contention that no exculpatory evidence was presented at the hearing; and the assertion that there existed political antagonism between local union officials and plaintiffs because of a wildcat strike led by some of the plaintiffs and a dispute over the appointment of a steward, resulting in denunciation of plaintiffs as ‘hillbillies’ by Angelo, the union president.” 506 F. 2d 1153, 1156 (CA6 1974).
The quoted segment of the opinion in Balowski v. International Union, 372 F. 2d, at 833, was:
“ 'It is apparent that what plaintiff is attempting to do is to relitigate his grievance in this proceeding. This he cannot do when the collective bargaining agreement provides for final and binding arbitration of all disputes, absent a showing of fraud, misrepresentation, bad faith, dishonesty of purpose, or such gross mistake or inaction as to imply bad faith on the part of the Union or the employer.'” 506 F. 2d, at 1157 (citation omitted).
The rule in the Sixth Circuit, under Balowski, would appear to have been that an employee could litigate his discharge in court if he proved bad faith or gross mistake on the part of either the union or the employer.
One judge, otherwise concurring, dissented as to affirming summary judgment against Anchor because “issues of fact . . . presented by the pleadings concerning plaintiffs’ charges against the employer . . . should not have been dealt with on summary judgment.” 506 F. 2d, at 1158.
Our order of April 21, 1975, was as follows:
“Certiorari granted limited to Question 1 presented by the petition which reads as follows:
“ ‘1. Whether petitioners’ claim under LMRA § 301 for wrongful discharge is barred by the decision of a joint grievance committee upholding their discharge, notwithstanding that their union breached its duty of fair representation in processing their grievance so as to deprive them and the grievance committee of overwhelming evidence of their innocence of the alleged dishonesty for which they were discharged?”’
The affirmance of summary judgment in favor of the International is therefore not before us. Nor is the judgment of the Court of Appeals reversing the summary judgment in favor of Local 377, since the Union has not sought review of this ruling.
§301 (a), 29 U. S. C. §185 (a):
“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”
Czosek v. O’Mara, 397 U. S. 25 (1970), which arose under the Railway Labor Act, 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq., involved a claim that a railroad had wrongfully deprived plaintiff of his seniority and that the union had failed in its duty to protest. The suit against the union was sustained by the Court of Appeals, but dismissal of the claim against the railroad was affirmed absent allegation that the company had participated in the union’s breach. In affirming the judgment we upheld the Court of Appeals’ ruling against the union, but did not reach the question whether the railroad was properly dismissed over the employee’s objections, since the latter did not challenge the judgment in this respect.
Mr. Justice Black, for one, was of the view that where the union refused to process a grievance, the employee should be allowed his suit in court without proof of the union’s breach of duty. Vaca v. Sipes, 386 U. S. 171, 203 (1967) (dissenting opinion).
Steinman v. Spector Freight System, Inc., 441 F. 2d 599 (CA2 1971); Butler v. Local Union 823, International Brotherhood of Teamsters, 514 F. 2d 442 (CA8), cert. denied, 423 U. S. 924 (1975); Margetta v. Pam Pam Corp., 501 F. 2d 179 (CA9 1974); Local 13, International Longshoremen’s & Warehousemen’s Union v. Pacific Maritime Assn., 441 F. 2d 1061 (CA9 1971), cert. denied, 404 U. S. 1016 (1972). See also Bieski v. Eastern Automobile Forwarding Co., 396 F. 2d 32, 38 (CA3 1968); Rothlein v. Armour & Co., 391 F. 2d 574, 579-580 (CA3 1968); Harris v. Chemical Leaman Tank Lines, Inc., 437 F. 2d 167, 171 (CA5 1971); Andrus v. Convoy Co., 480 F. 2d 604, 606 (CA9), cert. denied, 414 U. S. 989 (1973).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
songer_applfrom | L | 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).
HELVERING, Com’r of Internal Revenue, v. RICHMOND, F. & P. R. CO.
No. 4115.
Circuit Court of Appeals, Fourth Circuit.
June 14, 1937.
Berryman Green, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty.' Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for petitioner.
E. Rándolph Williams, of Richmond, Va., for respondent.
Before PARKER and NORTHCOTT, Circuit Judges, and HARRY E. WATKINS, District Judge.
PARKER, Circuit Judge.
This is a petition by the Commissioner of Internal Revenue to • review a decision of the Board of Tax Appeals relating to the 1929 income tax of the Richmond, Fredericksburg & Potomac Railroad Company. The question involved is the right of the taxpayer to a deduction on account of guaranteed “dividends” paid during the tax year on certain guaranteed stock, which constituted a first lien on taxpayer’s assets both with respect to the principal amount of the stock and the guaranteed dividends. On $481,000 of this preferred stock, dividends had been guaranteed at the rate of 7 per cent, and on $19,300 at 6 per cent, per annum. Taxpayer during the taxable year paid dividends under this guaranty in the amount of $34,835. It paid on the same stock an additional sum of $25,213, to bring the dividends up to 12 per cent, which was the amount of the dividend paid to the holders of its ordinary common stock. The Board disallowed the $25,213 as a deduction, holding that it occupied the status of an ordinary dividend, but allowed the $34,835, holding that this was in effect interest paid on an outstanding indebtedness of the company, for which deduction was allowable under section 23(b) of the Revenue Act of 1928, 45 Stat. 791, 799 (26 U.S.C.A. § 23(b) and note). Only the action of the Board with respect to the $34,835 item of “guaranteed dividends” is challenged.
“The “guaranteed stock” upon which the “guaranteed dividends” were paid is of anomalous character. It was issued pursuant to acts of the General Assembly of Virginia of February 13, 1856, and of December 13, 1865, and partakes of the nature both of capital stock and of bonded indebtedness. It participates with the other stock of the company in the division of the net earnings and has the same voting power; but the guaranteed dividends of 6 or 7 per cent, respectively, are payable, whether earned or not, out of general assets as well as out of earnings. These dividends, moreover, together with the principal of the “stock,” constitute a first lien on the assets of taxpayer, taking priority not only over general creditors but also over the holders of corporate bonds. No maturity date is fixed upon which the investment in the guaranteed stock must be retired so long as the guaranteed dividends are paid; but, upon default in the payment of these dividends, the principal amount of the stock as well as the dividends becomes a debt of the company, and the mortgage securing the stock and dividends is subject to foreclosure, upon which the amount of the stock, as well as the unpaid dividends, is payable from the proceeds. Moreover, while the guaranteed stock shares ratably with other stock in dividends declared from earnings, only the guaranteed rate is payable in any event and constitutes a lien upon assets; and, in the event of foreclosure of the mortgage, the holder of the guaranteed stock is entitled to receive only the amount of the stock and the guaranteed dividends which have accrued.
The history of this guaranteed stock is set forth at length and the rights incident thereto are fully described in the case of Gordon’s Executors v. Richmond, F. & P. R. Co., 78 Va. 501, in which the right of the holders to participate in dividends in excess of the guaranteed amount was upheld. The leading case as to the validity of a provision giving such stock a lien on assets where authorized by state law is Heller v. National Marine Bank, 89 Md. 602, 43 A. 800, 801, 45 L.R.A. 438, 73 Am.St.Rep. 212, in which the Court of Appeals of Maryland, in a learned opinion by Chief Judge McSherry, points out that such stock evidences in reality a mortgage indebtedness of the corporation, and that the rights of the holders thereof are to be determined, not from a consideration of the ordinary incidents of preferred stock, but from an examination of the provisions of the statute or contract under which such stock has been issued, saying: “Calling stock preferred stock does not per se define the rights in such stock, but these depend on the statute or contract under which it was issued. Elkins v. Camden & A. R. Co., 36 N.J.Eq. 233. As said by the supreme court of Ohio: ‘To call a.thing a wrong name does not change its nature. A mortgage creditor, although denominated a “preferred stockholder,” is a mortgage creditor nevertheless; and interest is not changed into a “dividend” by calling it a dividend. Nothing is more common, in the construction of statutes and contracts, than for the court to correct such self-evident misnomers by supplying the proper words. To use the language of the court in Corcoran v. Powers, 6 Ohio St. 19: “The question in such cases is not, what did the parties call it ? but, what do the facts and circumstances require the court to call it?” ’ Burt v. Rattle, 31 Ohio St. 116. Courts are not influenced by mere names. They look beyond these, and give to the subject dealt with the character — the status — which its properties denote it possesses. The qualities and properties of a thing are its essentials. They define and mark what it is. The name is purely accidental. It is no part of the thing named. If, then, the thing which the statute contemplates possesses the characteristics and qualities of preferred stock, and possesses none other, it is preferred stock; but if, on the other hand, it possesses characteristics and qualities that are entirely foreign to preferred stock, as strictly defined, and that are descriptive of something else, then the thing is obviously either not ordinary preferred stock, or not preferred stock at all, even though it be called preferred stock, and have, in addition to its own qualities, some of the characteristics that do pertain to preferred stock. Precisely because preferred stock has no lien on the company’s property, and cannot be repaid in advance of general creditors, it is necessarily true that a security which is, by express and emphatic legislative enactment, entitled to just such a lien and just such a priority, is not preferred stock, technically speaking, though called by that name, and though having many features incident to preferred stock.”
The question which arises for our determination is whether the guaranteed dividends paid by the taxpayer on the guaranteed stock were in truth dividends or whether they were in reality payments of interest on secured indebtedness; and this question must be answered, as said by Judge McSherry, by a consideration, not of the names which the parties have used to describe the interest given to the holders of the guaranteed stock, but of the nature and incidents of that stock and of the rights pertaining thereto. The essential difference between a “stockholder” and a “creditor” is that the stockholder intends to embark upon the corporate adventure, taking the risks of loss attendent upon it that he may enjoy the chances of profit. The creditor, on the other hand, does not intend to take such risks so far as they may be avoided but merely to lend his capital to others who do intend to take them. Warren v. King, 108 U.S. 389, 399, 2 S.Ct. 789, 27 L.Ed. 769. While no comprehensive rule may be laid down for distinguishing in all cases between an investment in a corporation and a loan to it, one of the most important considerations is whether the right to share in the assets of the corporation in case of dissolution is subject to the rights of creditors. If subject to such right, there is a strong presumption that the interest in question is that of a stockholder. See Heller v. National Marine Bank, supra. If it is not subject to such right, or if, as here, it is preferred over the right, the status of a creditor rather than of a stockholder is indicated. This is recognized by Treasury Regulations 45, art. 812, which provides: “Art. 812. Borrowed Capital: Securities.— Any interest in a corporation represented by bonds, debentures, or other securities, by whatever name called, including so-called preferred stock, if with respect to the payment of either interest or principal it ranks with or prior to the interest of the general creditors, is borrowed capital and cannot be included in computing invested capital. Any such preferred stock may, however, be so included if it is deferred with respect to the payment of both interest and principal to the interest of the general creditors.”
In the case at bar, not only does the guaranteed stock rank prior to the interest of general creditors, but also prior to the interest of other secured creditors. The so-called guaranteed dividends are debts to be paid when due, whether there are net earnings out of which they may be paid or not; and, if there be default in paying them as guaranteed, the lien on the assets can be foreclosed and the principal as well as the guaranteed dividends paid from the proceeds, in advance of all other creditors. It is to be borne in mind that this is not the case of a dividend guaranteed by a third party which, like other dividends, is payable only from earnings. It is guaranteed by a pledge of the taxpayer’s own assets, and, if not earned, its payment results in the depletion of those assets just as does the payment of any other debt. So long as the dividends are paid when due, the principal is not withdrawn, but, upon default in payment of these, it too becomes payable out of assets. Thus the principal of this secured stock not only is not risked upon the enterprise along with the investment of other stockholders, but it is given a preferential lien upon the assets over the claims of all other creditors, secured as well as unsecured.
The fact that the principal of the guaranteed stock is not demandable by the stockholder in the absence of default in the payment of the guaranteed dividends is not conclusive of a stock investment. In the light of the other attributes of the stock, this indicates rather a debt as to which there is a right of renewal so long as the interest is paid when due. There is nothing in the fact that the debt evidenced by the preferred stock is not payable at a fixed time which throws upon the holders thereof any of the risks with respect to the corporate enterprise which are characteristic of the position of the stockholder. On the contrary, the security required for principal as well as for dividends and the provision that, upon default in payment of guaranteed dividends, the mortgage securing same shall be foreclosed and principal as well as dividends paid from the proceeds, effectually negative the existence of such risks.
Nor does the fact that the guaranteed stock shares in the profits of the corporation above the guaranteed dividends, if these are exceeded by the ordinary stock dividends, and that it has a vote in the management of the corporation, detract from its position as secured indebtedness. These incidents of stock ownership were doubtless added to the ordinary rights of a secured creditor for the purpose of making the loan attractive; but a bond does not cease to be a bond merely because a share of stock is issued with it, and if the law, as did the law of Virginia, permits some rights of a stockholder to be included in an instrument evidencing a secured debt, the rights of the creditor are not impaired by so including them.
This guaranteed stock, then, while sui generis, is, in the light of all its attributes, nothing more than a secured debt which is not to be repaid so long as the interest payments thereon are met when due, and which entitles the lender, in addition to interest, to participate with the stockholders in the earnings and management of the business. And the guaranteed dividends paid on such stock differ in no particular from interest paid on a secured debt, and should be treated as such as a matter of corporate financing and for income tax purposes.
As said in Fletcher, Cyclopedia of Corporations, vol. 6, p. 6014: “If authorized by its charter or by statute, a corporation may, in order to raise money, issue certificates in the. form of certificates of preferred stock, so-called, as security, making the holders creditors of the corporation, instead of mere stockholders, and even giving them a lien upon the property of the corporation, which will be superior to the rights of subsequent creditors or mortgagees. Such stock, of course, is not ordinarily preferred stock, nor, technically, is it preferred stock at all, and therefore it is not governed by the ordinary rules. It is sui generis, and. the rights of the holders are determined by the statute.”
A case very much in point is Com’r of Int. Rev. v. Proctor Shop (C.C.A.9th) 82 F.(2d) 792, 793, wherein it appeared that “debenture preference stock” was issued, upon which “cumulative interest” was payable and which was given a preference over other stockholders in the event of the dissolution of the corporation. In holding that “interest” paid on this debenture preference stock was deductible as interest paid on indebtedness of the corporation, the court quoted with approval the following language of the Board, viz.: “None of the decided cases lay down any comprehensive rule by which the question presented may be decided in all cases, and 'the decision in each case turns upon the facts of that case.’ * * * In each case it must be determined whether the real transaction was that of an investment in the corporation or a loan to it. On this 'the designation of the instrument issued by the corporation, while not to be ignored, is not conclusive. * * * The real intention of the parties is to be sought and in order to establish it ■evidence aliunde the contract is admissible. * * * If the evidence establishes ‘that dividends paid are, according to the intent of the parties in fact interest, and the stock on which the dividends are paid is merely held by the creditor as security, it makes no difference what the reason was for paying it in that form.’”
See, also, Com’r of Int. Rev. v. O. P. P. Holding Corp. (C.C.A.2d) 76 F.(2d) 11; Elko Lamoille Power Co. v. Com’r (C.C.A. 9th) 50 F.(2d) 595; Wiggin Terminals, Inc. v. United States (C.C.A.1st) 36 F.(2d) 893; Arthur R. Jones Syndicate v. Com’r (C.C.A.7th) 23 F.(2d) 833; Bolinger-Franklin Lumber Co. v. Com’r, 7 B.T.A. 402; H. R. De Milt Co. v. Com’r, 7 B.T.A. 7.
While not controlling upon us, it is worthy of note that this guaranteed stock has uniformly been treated both by the taxpayer and by the Revenue Department of the Government as an outstanding indebtedness, that as such it has been excluded from invested capital for the purpose of computing the excess profits tax, and that the guaranteed dividends have been treated as interest payments on borrowed money and not as ordinary dividends. Thus it appears from the record that the stock was carried on taxpayer’s balance sheet as “long term debt” (Record 46). It was excluded from invested capital in the years 1918 and 1919, when excess profits taxes were involved (Record 46). In 1923 the Committee on Appeals and Review in the Revenue Department ruled with respect to the 1918 tax return that the guaranteed dividends should be treated as interest paid and allowed as a deduction (Record 56 and 57) ; and this ruling was accepted by the Department and the dividends were allowed as deductions for all the years from 1918 to 1928 inclusive, or until this controversy was raised with respect to the 1929 taxes (Record 46). Such a ruling, acquiesced in over so long a period, is certainly entitled to much weight as a contemporaneous construction of the Regulations of the Department by responsible officials charged with their administration. Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 117, 74 L.Ed. 457; Swendig v. Washington Water Power Co., 265 U.S. 322, 331, 44 S.Ct. 496, 498, 68 L.Ed. 1036; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121.
The decision of the Board of Tax Appeals will be affirmed.
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_circuit | G | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
J. C. MARTIN CORP., a corporation, and Jack Kaslow and Seymour Orenstein, Individually and as Officers of J. C. Martin Corp., and Jack Kaslow, Trading as K. W. Sales Company, and Seymour Orenstein, Trading as L & S Sales Company, Petitioners, v. FEDERAL TRADE COMMISSION, Respondent.
No. 11859.
United States Court of Appeals Seventh Circuit.
April 3, 1957.
Edward L. Smith, Washington, D. C., for petitioner.
Robert B. Dawkins, Asst. General Counsel, John W. Carter, Jr., Attorney, Federal Trade Commission, Washington, D. C., Earl W. Kintner, General Counsel, Frank M. Whiting, Washington, D. C., Attorneys for Federal Trade Commission, for respondent.
Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
SWAIM, Circuit Judge.
This matter comes here on a petition to review and set aside an order to cease and desist issued by the Federal Trade Commission at the conclusion of an administrative proceeding in which petitioners were charged with having engaged in unfair and deceptive acts and practices in commerce by the sale and distribution of merchandise to the public by means of a game of chance, lottery or gift enterprise in violation of Section 5 of the Federal Trade Commission Act, 52 Stat. 111, 15 U.S.C.A. § 45.
Petitioners are engaged in the sale and distribution of numerous and varied articles of merchandise including, among others, jewelry, silverware, kitchen utensils and toiletries. Practically all of petitioners’ sales are made through members of the public acting as distributors or sales agents for petitioners’ merehandise. Petitioners obtain these agents or distributors by sending catalogues to persons whose names and addresses are obtained from mailing lists. The catalogues or sales circulars contain pictures and ^scriptions of various articles of merchandise offered as premiums or corn-Potion to the distributor for his servlces f ^rty af1orted artljcles of merchandise. The catalogue contains a llst f/orty artlcl®s °f merchandise of*ered far.,sale with descriptive details for eachm*tem’. the name and ^lce' Thef “«blank space opposite the na“e cac\ltem inserting the name of the purchaser. To the right of the articles listed for sale on the sales sheet there are forty perforated tabs. Even tab conceals the name and price of an article of merchandise corresponding to the name and price of an article in the bst of merchandise offered for sale. Immediately above the block of pull tabs the following notice appears:
“This is a sales sheet. It is not a punchboard or a gambling device. Do not construe or accept for use as a gambling device.
******
“Here’s how it works. You may purchase from the list shown on the left where the merchandise is described or you may pull any one of sj*Ps below on the back of which “ Prmtecl the article and price. If satisfied with the item you picked you are not obliged to buy it."
As provided by the notice, a prospective purchaser has the option of purchasing directly from the descriptive list of merchandise or of pulling a tab to ascertain his purchase and the price to be paid, There is no price differential in regard to a particular article depending on whether a “straight sale” or a “pull tab sale” takes place. A purchaser may buy as many of any particular article as he wishes either outright or by means of the tabs. Whether or not an individual elects to purchase the article identified by a tab he has pulled, he does not pay anything for the privilege of pulling the tab. After a sale has been consummated, the name of the purchaser is written in the blank space opposite the name of the article purchased.
When the person operating the catalogue has sold all of the articles and remitted the purchase price of the articles to the petitioners, petitioners ship to this person the merchandise so sold together with a premium as compensation for his services in operating the catalogue or sales circular. The distributor then delivers this merchandise to the respective purchasers whose names appear on the list which was filled out at the time the purchases were made.
If the complete assortment is disposed of the distributor would collect $29.99 to remit to the petitioners. The distributor may elect to retain a specified percentage of this amount in lieu of the promium. In the event the distributor does not succeed in selling the complete assortment, he is not entitled to a premium but receives a cash commission on the articles sold. In the event that the distributor s sales exceed the amount represented by the complete assortment, he receives in addition to the regular premium a cash commission on the excess, Approximately 70 per cent of petitioners’ sales made by means of the sales eircular, which includes sales made through the use of the pull tabs and sales made outright, have been for the amount represented by a complete assortment of the forty items ($29.99), 20 per cent for amounts exceeding that figure and 10 per cent for amounts below that figure. Petitioners purchase the forty assorted articles as a complete, packaged unit and the success of their method of selling merchandise depends in large part upon the sale of not more nor less than a complete assortment. Otherwise inventories of the individual articles must be maintained and special packaging arrangements must be made when an order is to filled.
The Commission found that petitioners’ sales methods involve and contemplate the use of lottery devices in the sale and distribution of their merchandise to the public and constitute unfair acts and practices in commerce within the meaning of Section 5 of the Federal Trade Commission Act. Petitioners were ordered to cease and desist from:
“1. Supplying to or placing in the hands of others pull cards or any other devices which are designed or intended to be used in the sale and distribution of [their] merchandise to the public by means of a game of chance, gift enterprise, or lottery scheme.
“2. Selling or otherwise disposing of any merchandise by means of a game of chance, gift enterprise, or lottery scheme,
A lottery is a scheme for the distribution of prizes by lot or chance; it is a device whereby the amount of return an individual receives for the amount contributed by him is made to depend upon chance. Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304 54 S.Ct. 423 78 L.Ed. 814; Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59; Hofeller v. Federal Trade Commission, 7 Cir., 82 F.2d 647, certiorari denied 299 U.S. 557, 57 S.Ct. 19, 81 410,TTH ¿tin Thp fhvpp p^pn+i'nl ele’raents of a lottery are: (1) the distribution of prizes (2) according to chance (3) for a consideration. Wolf v. Federal Trade Commission, 7 Cir., 135 F.2d 564. Cf. United States v. Rich, D.C.E.D.Ill., 90 F.Supp. 624.
Petitioners contend, inter alia, that the Commission’s findings are unsupported by substantial evidence. Petitioners urge that the notice to prospective purchasers that they are not obliged to buy the article identified by a tab eliminates the element of chance and consideration because the purchaser is entitled to reject his purchase after he ascertains what it is and the price to be paid. A similar contention was advanced and rejected by this court in Wolf v. Federal Trade Commission, 7 Cir., 135 F.2d 564, which involved an almost identical sales scheme. Petitioners insist, however, that there was a finding in the Wolf case that the notice was a subterfuge intended to avoid the consequences incident to the operation of a lottery scheme, whereas there is no such finding here. The difficulty with any argument based upon this notice is that it presupposes the very thing we are trying to decide. If the device constitutes a lottery, the law itself declares that a purchaser would not be bound to buy the article indicated by the tab. As was said in the Wolf case, 135 F.2d at page 566: “This is no more than a recognition of the common law rule that a gambling transaction is unenforcible, and ‘only the loser has recourse to the courts.’ ” If, on the other hand, the device does not constitute a lottery, then the legal significance of the notice wnuld lie in the province of the law of contracts. Therefore, in regard to the issues presented by this case the notice may properly be disregarded.
Petitioners next insist that since an individual has the option to purchase a desired article outright, rather than utilize the tab device, the element of chance is absent. This was also true in the Wolf case although the sales circular there did not contain a notice indicating to the purchaser that he had such an option as is the case here. In any event, we fail to see what comfort petitioners can gain from the fact that a pospective purchaser has this option. If an individual exercises his option to take a chance by pulling a tab can it be said that he has not taken a chance? The objection to the pull tab scheme cannot be removed by offering the individual an unobjectionable alternative.
A more serious question is whether the pull tab device standing alone is a lottery scheme. We think it is not. Petitioners’ sales method does not incorporate the element of prize which is the motivating factor or the inducement that accounts, in large part, for the success of virtually all forms of gambling — the opportunity to get something for nothing.
In order to constitute a lottery the elements of consideration, chance and prize must be present. The mere presence of chance does not constitute a lottery, nor will chance when coupled with consideration suffice. It is not chance in general with which we are concerned, but the chance of winning a prize, whether that chance be as to any return or merely as to the amount or value of the return. Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S. Ct. 423, 78 L.Ed. 814; Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59; Hofeller v. Federal Trade Commission, 7 Cir., 82 F.2d 647, certiorari denied 299 U.S. 557, 57 S.Ct. 19, 81 L.Ed. 410. The only chance involved in the petitioners’ scheme is as to the article to be purchased ; there is no chance of prize in the sense of the amount or value of the thing to be received being dependent upon lot or chance. Of course, the mere fact that each purchaser receives a thing of value for his contribution does not negate the existence of a lottery. Keller v. Federal Trade Commission, 7 Cir., 132 F.2d 59. But where, as here, each participant in the scheme will in any event receive the equivalent of the amount contributed by him, and he is not under any hazard of pecuniary loss, nor offered the chance of receiving something of more value than the amount contributed by him, a lottery does not exist.
The Commission was of the opinion that prize is present in petitioners’ scheme “because the some forty articles which may be obtained through the pull card vary widely in nature and might well prove to be either valuable or worthless, depending upon the situation of the particular individual receiving them. An article regarded as a ‘prize’ by one recipient might be wholly without use or value to another. For example, the cigarette lighter offered on one of [petitioners’] circulars would be of value to a smoker, while valueless to a nonsmoker. Again, a man receiving the ten packages of razor blades included in the list probably would get his money’s worth if he used a safety razor rather than an electric shaver and if the blades would fit his razor; otherwise the blades would be wholly without value to him.”
We believe that it would be stretching the term lottery to the breaking point to sustain this finding of prize in petitioners’ sales method. Admittedly, the Commission finds support for the validity of this finding in the Wolf case where a similar definition of “prize” is stated. The Commission in the Wolf case had found that some of the merchandise offered by the petitioner had greater value and ordinarily sold at higher prices than the prices listed, thereby inducing purchasers to pull tabs in the hope that they would receive those articles of greater value than the price designated to be paid for them. The petitioner there also complained of the Commission’s effort to find the element of prize in his method of sales and distribution. The court, after noting the finding concerning the relative values of the merchandise, said:
“We think we might go even further and find an element of prize in whether or not the purchaser drew a chance to buy an article that would be of any value to himself. To illustrate, a person needing razor blades might well consider himself a prize winner if he drew a chance to buy a package of them instead of a bottle of perfume which might be a total loss to him.” (Emphasis added.) 135 F.2d at page 567.
We think the court went too far in defining “prize” — a definition which was not necessary to the court’s decision. It was alleged in the complaint in the instant case that:
“Some of [petitioners’] articles of merchandise have purported and represented retail values greater than the prices designated for them, but are distributed to the consumer for the price designated on the tab which he pulls. The prices of others of the articles are higher in proportion than the articles first mentioned. The apparent greater values of some of said articles induces members of the purchasing public to purchase the tabs or chances in the hope that they will receive articles of merchandise of greater value than the designated prices to be paid for same.”
But the hearing examiner found that there was no evidence supporting these allegations. Since there is no finding here concerning the relative values of petitioners’ merchandise, the Wolf case is not controlling.
We are constrained to reject the finding of the Commission that petitioners' sales methods constitute a lottery scheme and, since our disposition of this issue is dispositive of the petition for review, we do not reach petitioners’ other contentions.
The petition for review is allowed and the Federal Trade Commission’s order to cease and desist, entered in this matter on June 29, 1956, is vacated and set aside.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_applfrom | J | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff-Appellee, v. Juan ROSARIO, Robert Richard Brown and Carl DeMichael, Defendants-Appellants.
Nos. 81-2432, 81-2519 and 81-2522.
United States Court of Appeals, Seventh Circuit.
Submitted March 18, 1982.
Decided May 10, 1982.
William H. Theis, Chicago, 111., Waring R. Fincke, Shellow, Shellow & Glynn, Milwaukee, Wis., John W. Conniff, Chicago, 111., for defendants-appellants.
Phillip A. Turner, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., Chicago, 111., Lawrence 0. Anderson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Before PELL, BAUER and CUDAHY, Circuit Judges.
These appeals were submitted to a panel-for disposition on the motions papers without oral argument. Cir.R. 6(a).
PER CURIAM.
In these appeals we decide that the district court’s denial of a motion to dismiss a criminal indictment on the allegation of prosecutorial vindictiveness is not a final appealable order. 28 U.S.C. § 1291. For reasons presented below, we dismiss these appeals for want of appellate jurisdiction.
In United States v. Brown and DeMichael, Nos. 81-2519, 81-2522 (“Brown”), the defendants moved to dismiss the indictment brought against them in the Eastern District of Wisconsin, charging each with one count of wire fraud, 18 U.S.C. § 1343, and one count of interstate transportation of property taken by fraud, 18 U.S.C. § 2314. The motion was primarily based on their allegation of prosecutorial misconduct. Briefly, they contended that the United States Attorney in the Eastern District of Wisconsin sought their indictment since the Government was displeased with the assertedly lenient treatment defendants received in a related case in the Northern District of Illinois. From an examination of the documents presented with the motions papers in this Court, the Government’s displeasure reputedly stemmed, inter alia, from the trial judge’s severance of some defendants, acquittal of a co-defendant based on a finding of insanity, and grant of a light sentence to DeMichael. The defendants additionally ascribed an improper motive to the Government in its delay in the return of the indictment in the Eastern District of Wisconsin until after trial and sentencing in the Northern District of Illinois.
At the conclusion of a four day evidentiary hearing on this motion to dismiss and other motions, a magistrate recommended to the district judge that the motion to dismiss be denied. Defendant DeMichael filed objections to the magistrate’s recommendations. The district judge adopted the magistrate’s recommendations and defendants filed their notice of appeal.
In United States v. Rosario, No. 81-2432, the defendant, charged with three counts of theft or receipt of stolen mail matter, 18 U.S.C. § 1708, similarly moved to dismiss the indictment based on prosecutorial retaliation. His motion was grounded on the contention that the indictment had the “appearance of prosecutorial retaliation” because he had been indicted in the instant case after he had filed his notice of appeal from an earlier conviction, also for theft or receipt of stolen mail. It is his contention that the incidents giving rise to the second indictment could have been joined in the first indictment. After two hearings, the motion to dismiss was denied in a minute order. Rosario’s appeal followed.
I
In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Supreme Court found a prosecutor could not respond to a criminal defendant’s invocation of a statutory right to appeal by bringing additional charges against him. In Black-ledge, the defendant appealed a misdemeanor conviction from misdemeanants’ court, thus entitling him, under North Carolina law, to a trial de novo in the superior court. The prosecutor then obtained an indictment from a grand jury, charging the defendant with a felony for the same conduct for which he had been convicted in misdemeanants’ court. Examining the prosecutor’s conduct, the Court concluded that the appearance of vindictiveness was violative of the Constitution’s due process guarantees:
A person convicted of an offense is entitled to pursue his statutory rights to a trial de novo, without apprehension that the prosecutor retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.
Id. at 28, 94 S.Ct. at 2102 (footnote, citation omitted).
While Blackledge proscribes such retaliatory prosecutions, it is unsettled whether a denial of a motion to dismiss an indictment on such grounds can be immediately appealed or must be reviewed only at the conclusion of the criminal proceedings in the trial court.
II
The Supreme Court has acknowledged only three exceptions to the requirement that a defendant be sentenced before seeking review of the trial court’s orders: denial of reduction of bond, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (see also 18 U.S.C. § 3147(b), Fed.R.App.P. 9(a)); denial of a motion to dismiss based on double jeopardy grounds, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); and denial of a Congressman’s claim of privilege based on the Speech and Debate Clause, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979).
Abney sets out the criteria to be applied to determine if an order entered in a criminal proceeding may be immediately appealed. Such an order is (1) a complete, formal, and in the trial court, final rejection of a criminal defendant’s claim, (2) collateral to, and separable from the issue of guilt or innocence (3) of which the failure to review before conviction and sentence would significantly undermine the rights conferred on the defendant. Id. at 659-60, 97 S.Ct. at 2040. See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Freeman v. Kohl & Vick Machine Works, Inc., 673 F.2d 196 (7th Cir. 1982). The Supreme Court has not determined whether a denial of a motion to dismiss an indictment for prosecutorial misconduct meets the Abney criteria. This Court has not addressed this issue.
Of the circuits which have addressed the issue, only the Ninth appears to consider such an order as falling within the collateral order doctrine, permitting review before the completion of the trial court’s proceedings with sentencing. United States v. Griffin, 617 F.2d 1342, 1345 (9th Cir.), cert. denied, 449 U.S. 863, 101 S.Ct. 167, 66 L.Ed.2d 80 (1980). Confronted with the same issue, the Fifth and District of Columbia Circuits have refused to follow the Griffin result and have found that a defendant seeking to challenge such an order must present it in the appeal of his conviction and sentence. United States v. Brizendine, 659 F.2d 215 (D.C.Cir.1981), United States v. Gregory, 656 F.2d 1132 (5th Cir. 1981). We conclude that Gregory and Brizendine present the better rule.
The Gregory and Brizendine courts found that an allegation of prosecutorial vindictiveness is not a claim of right the denial of which requires review in an interlocutory appeal. Rather such a trial court determination can be reviewed in due course as part of the issues presented after a party’s conviction. The rationale is that prosecutorial vindictiveness can be reviewed at the same time as any other allegations of due process violations. A defendant has no particular claim in moving forward on an interlocutory basis with this particular assertion of error. See, e.g., United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (no interlocutory appeal from an asserted violation of Sixth Amendment right to speedy trial); Abney, 431 U.S. at 663, 97 S.Ct. at 2042 (none for claim of insufficiency of indictment).
Rosario attempts to distinguish Gregory and Brizendine, urging that the prosecutors’ conduct in those cases was the result of an animus against the defendants, demonstrated by the prosecutors’ comments and pretrial maneuvers (Gregory) or in the bringing of the indictment after the failure of plea bargaining (Brizendine). See, e.g., United States v. Berger, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Meeker, 558 F.2d 387 (7th Cir. 1977).
Rosario asserts that his allegations fit more squarely within the Blackledge proscription against a prosecutor penalizing a defendant for asserting a statutory right. In Rosario, the United States Attorney brought the second indictment on similar charges only after Rosario invoked his statutory right to appeal his first conviction. Thus, he asserts, the prosecutor’s decision to bring the second indictment appeared to retaliate against Rosario’s exercise of that right. Rosario’s challenge then goes beyond a general assertion of impermissible animus and questions the bringing of the indictment at all. Rosario concludes that it is the invocation of the criminal process itself that violates due process; he characterizes his right as the right not to be tried at all.
Although we agree that Rosario’s assertions go beyond a generalized claim of prosecutorial vindictiveness and appear to come within Blackledge, we do not accept that an interlocutory appeal lies for review of the district court’s determination of a Black-ledge claim. Instead, we apply the Gregory and Brizendine rationale to these appeals. Claims of prosecutorial vindictiveness, whether based on impermissible animus or retaliation for the exercise of a statutory right, do not meet at least the third criterion for interlocutory appeals in a criminal proceeding as set forth in Abney, 431 U.S. at 659-60, 97 S.Ct. at 2040 (see page 5 above).
The failure to review before conviction and sentence would not significantly undermine the rights conferred on defendant. In many circumstances, a successful assertion of a due process violation would void the bringing of the indictment from its inception. Once vindicated on appeal, such a defendant may not only have his conviction set aside, but also the indictment quashed. See, e.g., United States v. Udziela, 671 F.2d 995 (7th Cir. 1982) (perjured testimony presented to grand jury); United States v. Layton, 645 F.2d 681 (9th Cir. 1981) (lack of subject matter jurisdiction); United States v. Hinkle, 637 F.2d 1154 (7th Cir. 1981) (insufficiency of indictment); United States v. Ledesma, 632 F.2d 670 (7th Cir. 1980) (improper venue). Here, the defendants’ claims of retaliatory prosecution fall within this category. Such due process claims, as well as contentions arising out of pretrial proceedings, trial, and sentencing, must abide the final outcome of these proceedings before the trial court.
APPEALS DISMISSED.
. In Brown, this panel granted the Government’s motion to dismiss on October 16, 1981, “for reasons to be stated in an opinion to be entered at a later date.” Our celerity in resolving Brown without an opinion stemmed from an awareness that the district court had set the date for a trial involving multiple counts and defendants, including defendants other than Brown and DeMichael. In Rosario, the Government’s motion to dismiss, which has been fully briefed, is still pending. On January 19, 1982, this Court stayed the briefing schedule for this appeal.
Since these appeals present the same issue, the Court, sua sponte, consolidates them for analysis and disposition.
. Defendants presented to the trial court an omnium gatherum of additional grounds for dismissal of the indictment, including pleading defects, double jeopardy (see footnote 4 below), ineffective assistance of counsel, preindictment delay, non-disclosure of material information. Even if there was a basis for entertaining these appeals, we could not reach these additional contentions. Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977).
. In view of the fact that only DeMichael objected to the magistrate’s recommendations, we question whether Brown has successfully preserved his objections for the purposes of his appeal. 28 U.S.C. § 636(b)(1)(B) and the magistrate’s order clearly contemplate the filing of objections to a ruling on a motion to dismiss the indictment. In view of the limited record before us, we do not resolve the issue of the preservation of an objection to a magistrate’s order when a party fails timely to object to the district judge. We also note that the district judge’s review went beyond DeMichael’s objections and specifically adopted all of the magistrate’s recommendations, including his denial of Brown’s motions.
. DeMichael also asserted that the indictment should be dismissed as violative of the plea agreement he entered into in the Northern District of Illinois. An interlocutory appeal does not lie from such an order. See United States v. Eggert, 624 F.2d 973, 974-76 (10th Cir. 1980); compare United States v. Alessi, 544 F.2d 1139, 1143-1152 (2d Cir.); cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976) and United States v. Alessi, 536 F.2d 978, 980-81 (2d Cir. 1976). One count of the indictment was dismissed as to both defendants on the basis of double jeopardy. Double Jeopardy Clause, U.S.Const.Amend. V. Neither Brown nor DeMichael contends that the Wisconsin case is an attempt to try him again on charges covered by the Illinois plea agreement. Abney, 431 U.S. at 660, 97 S.Ct. at 2040.
. U. S. v. Rosario, No. 81 Cr 81 (N.D.Ill.1981), aff'd, 679 F.2d 893 (7th Cir. 1982) (unpublished order).
. Cf. United States v. Wilson, 639 F.2d 500, 502 n.1 (9th Cir. 1981) (calling into question such interlocutory appeals as “counterproductive”).
The Ninth Circuit has also allowed appeals to lie for allegations of selective prosecution, id., cf. Flynt v. Ohio, 451 U.S. 619, 101 S.Ct. 1958, 68 L.Ed.2d 489 (1981) (Supreme Court’s 28 U.S.C. § 1257 jurisdiction), and violation of the Fifth Amendment’s indictment clause prohibiting prosecution of an “infamous crime” by information, United States v. Yellow Freight System, Inc., 637 F.2d 1248 (9th Cir. 1980). We join the Brizendine court in considering the Ninth Circuit’s “overly generous allowance of interlocutory appeals to be pernicious.” Brizendine, 659 F.2d at 224 and compare Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir. 1981) (no immediate appeal for denial of appointment of counsel) with Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir. 1981) (recognizing Cohen appeal).
. Similarly, in Brown, the defendants note that the bringing of the Wisconsin indictment was delayed until after the Illinois case was concluded. The Brown defendants also allege that the prosecutors’ actions stem largely from impermissible animus.
. While not dispositive in these appeals, we note the disruptive effect interlocutory appeals have on the effective administration of criminal justice. DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962); Gregory, 656 F.2d at 1136.
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_usc1sect | 7203 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. 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-Appellee, v. Robert M. WARNER, Defendant-Appellant.
No. 86-2314.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 22, 1987.
Decided Sept. 14, 1987.
Robert D. Gaubus, Peoria, Ill., for defendant-appellant.
L. Lee Smith, Asst. U.S. Atty., Peoria, Ill., and Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
MANION, Circuit Judge.
Defendant Robert M. Warner appeals from a district court judgment revoking his probation. For the reasons set forth below, that judgment is affirmed.
I.
In 1981, defendant was convicted after a bench trial of four counts of violating 26 U.S.C. § 7203 by willfully failing to file his federal individual income tax returns for the years 1974, 1975, 1976 and 1977. During that period, defendant owned and operated a gas station in Moline, Illinois. At trial, the government reconstructed defendant’s income from those years by painstakingly analyzing defendant’s books and records. The evidence established that defendant earned $30,505.93 in 1974, $10,-437.47 in 1975, $11,818.40 in 1976, and $7,940.46 in 1977. Having earned those amounts, defendant was required to file. 26 U.S.C. § 6012. But defendant did not file any returns.
The district court sentenced defendant to prison for one year on each of the four counts, with the sentences to run consecutively. The sentencing judge stated that he was putting defendant in prison because he was recalcitrant and would not promise to pay his back and future taxes. On the fourth count, the court suspended the sentence’s execution, favoring five years probation. This probationary period was to commence upon his release from prison, but with certain special probation conditions attached. Among the probation conditions were that he file “all required federal and state delinquent tax returns” within the first ninety days of probation and pay court costs of $45 during the first thirty days.
Defendant appealed, and we affirmed his conviction and sentence. United States v. Warner, 705 F.2d 463 (7th Cir.) (table decision without published opinion), cert. denied, 464 U.S. 862, 104 S.Ct. 190, 78 L.Ed.2d 168 (1983). The district court subsequently reduced defendant’s sentence by ordering that the one-year sentences on each of the first three counts run concurrently (with the five-year probationary period remaining as is). The special conditions of probation imposed upon defendant remained essentially the same, except that he was ordered to file all delinquent returns within the first sixty (down from ninety) days of probation and pay the court costs within the first forty-five (up from thirty) days.
Defendant was released from prison and began probation on February 19,1985. On that day, he met with his probation officer, John Hession. Hession reviewed the special probation conditions with defendant. Defendant then signed a form on which the conditions were listed and was given a copy.
Two days later, defendant decided that the district court’s special probation conditions needed refining before he could comply. On February 21, 1985, defendant told Hession that the Internal Revenue Service (IRS) would have to grant him immunity from further prosecution before he would file his delinquent returns. That was a theme to which defendant would return repeatedly over the next fourteen months. Defendant claimed that he could not remember his income and his records were lost while he was in prison. He told anyone who would listen that he was afraid that he would be charged with tax evasion because the only information he could file would be inaccurate. Presumably, defendant was concerned about violating § 7206(1) by subscribing to a false return. Defendant also claimed to be concerned about potential prosecution for late filing, presumably in violation of § 7203. In addition, defendant claimed that he did not know which forms to fill out and was afraid he would be prosecuted for filing the wrong ones, again presumably in violation of § 7203. To indicate his concern, he wrote to President Reagan (among others) to inquire whether he could be prosecuted. He also asserted to many that the Constitution and the Internal Revenue Code exempted him from paying taxes.
At a meeting on April 3, 1985, Hession suggested to defendant that he contact the IRS to seek their assistance in filing his delinquent returns. Defendant refused to contact the IRS and told his probation officer that he would not do so even if ordered by the court. On April 23, 1985, after the sixty-day period for filing returns had expired, Hession travelled to the defendant’s home to discuss defendant’s failure to make any progress in meeting his probation conditions. A few weeks later, on May 21, 1985, they met in Hession’s office. At that time, defendant told his probation officer that he would not be filing any returns and that he was not able to pay more than $2.00 of the due court costs.
On May 31, 1985, upon the probation officer’s petition, the district court issued an order to defendant to show cause why his probation should not be revoked. After the district court issued its order, a full year elapsed before the district court finally conducted a complete revocation hearing. A revocation hearing which began on October 18, 1985 was abruptly halted for reasons which are not important here.
During this period, defendant and Hession continued to meet, but defendant did not take advantage of the time to satisfy his special probation conditions. Defendant through counsel admitted at his revocation hearing that in early 1986 he found records which he believed helpful, but defendant still did not file any returns. And though he had paid only $2.00 out of the assessed court costs, defendant stopped looking for work after the court issued its order to show cause. Defendant reasoned that any job he would find would be interrupted by probation revocation and imprisonment (which seems to us a textbook definition of a self-fulfilling prophecy).
Finally, apparently in response to the district court’s suggestion, defendant changed his mind about meeting with the IRS. On April 24, 1986, two IRS agents met with defendant, his lawyer, and his probation officer to assist defendant in filing his returns. Defendant again demanded immunity from further prosecution, to no avail. Defendant now recalls that he asked what forms he should file but that no one would answer. His probation officer does not remember this query. The record does not otherwise indicate what advice the IRS agents offered. Defendant subsequently paid four more dollars towards the court costs but did not file any of the required returns for the years 1974 through 1977.
II.
The district court conducted a probation revocation hearing on May 30, 1986. By then, more than a year had passed since the deadline for defendant filing his delinquent returns had expired. Nearly a year had passed since the deadline for paying court costs had expired. Defendant had filed a return for 1983 prior to his incarceration but had not filed for any other year between 1974 and 1984. While the special probation conditions required defendant to file all delinquent returns for all of those years — state as well as federal — the district court at the revocation hearing only considered the four returns which formed the basis for defendant’s conviction.
At the hearing, appointed counsel represented defendant. Hession testified in detail to the facts just outlined. Defendant expressly waived his right to testify and declined the court’s invitation to present evidence and witnesses. Defendant told the court that his probation officer “brought out basically what I would have testified for.” Defendant instead tried to persuade the court that he had justifiably violated his probation conditions and should be excused.
Following the hearing, the district court found that a preponderance of the evidence showed that defendant had violated his probation conditions. In particular, the court found that defendant’s efforts to file his returns “were either completely frivolous or completely selfserving.” The court did not believe defendant’s claim that his records were lost while he was in prison, finding defendant’s “credibility on that point to be virtually zero.” The court further found that defendant had not tried to discuss with the IRS how much taxes he owed. In this regard, the court noted that the income figures the government reconstructed at trial would have provided defendant with a reasonable start.
The district court revoked defendant’s probation. The court subsequently sentenced defendant to the one-year sentence whose execution had been suspended.
Defendant timely filed his notice of appeal. We granted defendant leave to proceed in forma pauperis and appointed his counsel below to represent him on appeal.
III.
Whether to revoke probation is within a district court’s discretion. On appeal, we review a decision revoking probation only for abuse of that discretion. See United States v. Torrez-Flores, 624 F.2d 776, 780-81 (7th Cir.1980).
A district court requires little evidence to find that a probationer has violated his probation conditions. “The court need only be ‘reasonably satisfied’ and need not find by a preponderance of the evidence that a violation has occurred.” Torrez-Flores, 624 F.2d at 782, citing United States v. Smith, 571 F.2d 370, 372 (7th Cir.1978).
Defendant objected below and protests now that the only proof that defendant had failed to file came from his probation officer’s hearsay testimony. The court properly overruled defendant’s objection. Fed.R.Evid. 1101(d)(3) provides that except for privileges, the Federal Rules of Evidence do not apply to probation revocation proceedings. See Torrez-Flores, 624 F.2d. at 780. Hession’s testimony that defendant had not filed his returns was demonstrably reliable, and defendant does not challenge its accuracy. Therefore, defendant did not and could not contend below or on appeal that admitting Hession’s testimony deprived him of his Sixth Amendment Confrontation Clause rights. See Egerstaffer v. Israel, 726 F.2d 1231, 1234-35 (7th Cir.1984). See also United States v. Bell, 785 F.2d 640, 643 (8th Cir.1986).
The district court went further than necessary when it evaluated the evidence before it under a preponderance-of-the-evidence standard. Even under that higher standard, sufficient evidence exists in the record for a rational fact trier to have found that defendant violated his probation conditions, especially given that defendant did not dispute his probation officer’s veracity.
IV.
Finding that a probationer breached his probation conditions does not end a district court’s inquiry. Defendant presented to the district court two related defenses — the Fifth Amendment’s privilege against self-incrimination and lack of willfulness. Whether we view these defenses as factual excuses why defendant did not breach his probation conditions or as justifications why he should nonetheless not be recommitted, our analysis is the same (though in another case which characterization is used may affect who bears the burden of proof, an issue not reached by the district court or the parties here). According to defendant, the court abused its discretion when it revoked his probation in the face of these defenses. We find it did not.
Defendant contends that the Fifth Amendment’s privilege against self-incrimination protected him from filing the returns, even though filing was a condition of probation. Defendant did not claim the privilege on the grounds that any filing’s contents would incriminate him by disclosing illegal income sources. Cf. Minnesota v. Murphy, 465 U.S. 420, 435 & n. 7, 104 S.Ct. 1136, 1146-47 & n. 7, 79 L.Ed.2d 409 (1984). Rather, defendant invoked the privilege on the grounds that he could be subject to further prosecution if he filed an inaccurate return. Because his income was legitimately earned, defendant did not properly invoke the Fifth Amendment:
An individual who refuses to disclose the amount of his income derived from a legitimate source on the grounds that such disclosure would violate his Fifth Amendment privilege against self-incrimination has improperly invoked and asserted the Fifth Amendment privilege, unless he can show some possibility that such a disclosure may lead to a criminal prosecution.
An improper invocation of the Fifth Amendment is not an adequate justification for failure to file a tax return.
United States v. Verkuilen, 690 F.2d 648, 654 (7th Cir.1982), quoted with approval in United States v. Green, 757 F.2d 116, 122-23 (7th Cir.1985). A taxpayer’s fear of prosecution must arise from the return disclosing criminal activities independent of the return filing process itself. Otherwise, every taxpayer could invoke the Fifth Amendment and not file; any breathing person worries about filing a false return.
V.
Defendant next contends that the district court could not reasonably find that his failure to file his returns was willful; to the contrary, urges defendant, his failure to file the returns and satisfy his probation conditions arose from questions about which forms to fill out and his good-faith belief that he could invoke the Fifth Amendment. In addition, defendant contends, as he had at trial, that his records had disappeared, rendering him unable to complete his returns. We reject this contention.
First, there is no intent or fault element required by the probation conditions as imposed by the sentencing court here. Nothing in the conditions can be read as requiring a special mental state before they are breached. While proving willfulness was necessary to obtain defendant’s conviction under 26 U.S.C. § 7203, to prove a probation violation the government needed to show only the fact that defendant did not file the returns. Defendant could have challenged the probation conditions on direct appeal, but not now. See United States v. Weber, 437 F.2d 1218, 1220 (7th Cir.1971), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1973); See also United States v. Irvin, 820 F.2d 110, 111 (5th Cir.1987); United States v. Stine, 646 F.2d 839, 844-45 (3d Cir.1981).
Second, “[fjederal judicial power to permit probation springs solely from legislative action.” Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 173, 100 L.Ed. 62 (1955). 18 U.S.C. § 3651 (1982 & Supp. Ill 1985) authorizes probation where it would serve “the ends of justice and the best interest of the public as well as the defendant.” Implicitly included in the power to permit probation for these reasons is the power to revoke it for the same reasons, so 18 U.S.C. § 3653 (1982 and Supp. Ill 1985) authorizes a court to issue an arrest warrant simply for “violation of probation.” § 3653’s plain language shows that Congress did not require a court to find any particular state of mind before revoking probation.
Some federal and state cases suggest that a defendant’s probation should not be revoked where his failure to comply was not “willful.” See Bearden v. Georgia, 461 U.S. 660, 669, n. 10, 103 S.Ct. 2064, 2071, n. 10, 76 L.Ed.2d 221 (1983) (collecting cases); 3 W. LaFave & J. Israel, Crimi nal Procedure § 25.4(a) (1984) (collecting cases). But “willful” in those cases is used in the limited sense that the probationer’s failure was beyond his control and did not implicate the reasons why the sentencing court imposed probation. In Bearden, for example, the Court held that an indigent defendant’s probation cannot be revoked for failing to pay a fine absent evidence that he was responsible for failing to do so (unless other punishment will not meet the state’s interests in punishment and deterrence). To revoke probation then violates “the fundamental fairness” required by the Due Process clauses. Bearden, 461 U.S. at 672-73, 103 S.Ct. at 2073. Cf. Black v. Romano, 471 U.S. 606, 615, 105 S.Ct. 2254, 2260, 85 L.Ed.2d 636 (1985) (“We need not decide today whether concerns for fundamental fairness would preclude the automatic revocation of probation in circumstances other than those involved in Bear-den.”) Imprisonment, however, may be used as a “sanction to enforce collection” if the probationer is financially able to pay the fine or has not tried vigorously to find a job. Bearden, 461 U.S. at 668, 103 S.Ct. at 2070.
Bearden advances probation’s primary purpose, which is “ ‘to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.’ ” Torrez-Flores, 624 F.2d at 783, quoting Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932) (citation omitted in original). If, however, probation’s purposes have been frustrated, revocation is fair and appropriate even if the probationer did not willfully violate his probation conditions. As the Court emphasized in Bearden:
We do not suggest that, in other contexts, the probationer’s lack of fault in violating a term of probation would necessarily prevent a court from revoking probation. For instance, it may indeed be reckless for a court to permit a person convicted of driving while intoxicated to remain on probation once it becomes evident that efforts at controlling his chronic drunken driving have failed. Ultimately, it must be remembered that the sentence was not imposed for a circumstance beyond the probationer’s control “but because he had committed a crime.” In contrast to a condition like chronic drunken driving, however, the condition at issue here — indigency — is itself no threat to the safety or welfare of society.
461 U.S. at 668 n. 9, 103 S.Ct. at 2070 n. 9 (citations omitted).
Acts for which a defendant may not be criminally culpable — such as violating probation conditions while insane or voluntarily intoxicated — may nonetheless diminish probation’s usefulness. See, e.g., People v. Allegri, 109 Ill.2d 309, 93 Ill.Dec. 781, 487 N.E.2d 606 (1985); People v. Cooper, 146 Ill.App.3d 596, 100 Ill.Dec. 277, 280, 497 N.E.2d 157, 160 (1986). This matter also illustrates why probation’s goal of promoting rehabilitation while protecting society is not furthered by requiring willfulness before revoking probation. Defendant showed by failing to file his returns, without more, that he was not a promising candidate for rehabilitation. “A defendant generally may reject probation and elect to have sentence imposed.” United States v. Alexander, 743 F.2d 472, 479 (7th Cir.1984), quoting United States v. Mitsubishi Int’l Corp., 677 F.2d 785, 788 (9th Cir.1982). The record tells us that this is what defendant effectively did; the sentencing court made filing his returns part of his rehabilitation, and he failed.
While good faith and lack of willfulness does not preclude finding a probation violátion, defendant could and did raise his alleged good faith before the court as a factor for the court to consider in deciding whether to revoke probation. It is undisputed that defendant had a full opportunity below to present the mitigating factors that he now proffers. A rational fact trier in turn could be reasonably satisfied, as the district court found, that defendant’s efforts to file his returns “were either completely frivolous or completely selfserving” and that the defendant did not lose his records while he was in prison.
Losing records in any event does not help a taxpayer, as an intent to evade tax “may be inferred from conduct such as ... destruction of books or records,____” Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418 (1943). In addition, defendant’s trial on the underlying charges not only educated him as to his legal obligations but also reconstructed how much he owed. Therefore, there were no “substantial reasons which justified or mitigated the violation and make revocation inappropriate____” Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1764, 36 L.Ed.2d 656 (1973).
VI.
Next, defendant contends that he was improperly punished for failing to pay costs. Pursuant to 28 U.S.C. § 1918, a court may order a convicted defendant to pay the costs incurred by the government in successfully prosecuting a non-capital offense. As discussed above, however, a defendant’s probation ordinarily can not be revoked for failing to pay a fine imposed as a probation condition absent evidence that he was responsible. Bearden, 461 U.S. at 672, 103 S.Ct. at 2073. While Bearden discussed collecting a fine, its reasoning also applies to costs, another form of monetary sanctions. See Wisconsin v. Glick, 782 F.2d 670, 673 (7th Cir.1986); United States v. Hutchings, 757 F.2d 11, 14 (2d Cir.), cert. denied, 472 U.S. 1031, 105 S.Ct. 3511, 87 L.Ed.2d 640 (1985).
Here, defendant was unable to pay costs through his own fault. The district court found that the defendant, anticipating that he would be returning to jail, did not seek employment after the court issued its order to show cause. The court concluded that “the record clearly establishes here that his nonpayment was wilful and contumacious and he made no good faith effort to obtain employment or to pay the costs.” This finding is not clearly erroneous (though this may be too high a standard of proof to apply). Therefore, no Bearden infirmity exists. In any event, defendant’s failure to file his delinquent returns was reason enough for the district court to impose the previously suspended sentence on the fourth count.
VII.
18 U.S.C. § 3653 provides that when a probationer violates probation, “the court may revoke the probation and require him to serve the sentence imposed____” Nonetheless, defendant cursorily urges that the court abused its discretion in requiring him to serve his remaining unexecuted one year.
“It is well-settled that the sentencing decision is the unique province of the district court and will not be upset unless it violates applicable statutory limits or the district judge has abused or failed to exercise his sentencing discretion.” United States v. Jones, 808 F.2d 561, 570 (7th Cir.1986), cert. denied, —U.S.-, 107 S.Ct. 1630, 95 L.Ed.2d 203 (1987). The court properly exercised its discretion in recommitting defendant to his remaining year. Defendant had every imaginable chance to avoid returning to jail. He had fourteen months following his release from prison to file his returns and to pay $45 in court costs. He consciously chose not to. Even now, the record does not indicate that defendant has filed those returns or paid those costs.
For these reasons, the judgment below revoking defendant’s probation is
Affirmed.
. The Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, 98 Stat. 1987, codified at 18 U.S.C. §§ 3561-66 (Supp. Ill 1985) (amended in non-relevant part by the Criminal Fine Enforcement Act of 1984, Pub.L. No. 98-596, 98 Stat. 3139 (1984)), repeals § 3651 effective November 1, 1987, see Pub.L. No. 99-217, § 4, 99 Stat. 1728 (1985). The Sentencing Reform Act, however, as codified at 18 U.S.C. § 3561-62, provides that in deciding whether to impose probation a court should look at factors — set forth in § 3553(a) (Supp. Ill 1985) — which, when read together, replicate § 365 l's standard. See Sen.Rep. No. 98-225, 98th Cong., 2d Sess. 91 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3274 (§ 3553(a)’s factors "are set out merely to make more specific the considerations traditionally taken into account by the courts under the broad language of 18 U.S.C. 3651____” ).
. Similarly, the Sentencing Reform Act, supra n. 1, which repeals § 3653 effective November 1, 1987, provides in a section codified as 18 U.S.C. § 3565 that probation may be revoked if a defendant "violates a condition of probation.”
. Because no willful intent is required, the issue defendant raises as to whether his Fifth Amendment claim must be measured objectively or subjectively is a red herring. Were we, however, to graft a "willfulness” requirement onto the probation statutes, this defendant would not be helped. By asking us to overrule United States v. Moore, 627 F.2d 830, 833 (7th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981), defendant recognizes that the definition of "willful” this circuit applies to tax crime statutes would be the logical one to apply here. Under that definition, a subjective but unreasonable belief that the Fifth Amendment may be invoked does not negate the willfulness element found in § 7203 and other tax crime statutes. See Verkuilen, 690 F.2d at 655-56.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.
Answer: |