W. M. WEBB, INC., et al.
Solicitor General Erwin N. Griswold for petitioner.
Joseph J. Lyman, Washington, D.C., for repondents.
The respondents in this case, which was consolidated below, own boats that are used in commercial fishing in the Atlantic Ocean and the Gulf of Mexico. There fishing is carried out through contractual arrangements, shaped by established custom, with boat captains, who man the boats and manage their day-to-day operation. The question before the Court is whether the captains and crewmen of the boats are the 'employees' of the respondents within the provisions of the Federal Insurance Contributions Act (FICA)1 and the Federal Unemployment Tax Act (FUTA),2 which impose taxes on employers to finance government benefits for employees.
* During the taxable periods involved here,3 the respondents' vessels were engaged in fishing for menhaden, a non-edible fish that is processed and used for various industrial purposes. The owner of each vessel equipped the vessel and secured the services of an experienced fisherman to be captain. The captain then assembled a crew. The captain customarily served on the same vessel for a full season, and occasionally for several consecutive seasons, although the oral arrangements between owners and captains permitted either to terminate the relationship at the end of any fishing trip. The fishing trips lasted from one to several days.
Respondents filed tax returns as employers under the FICA and the FUTA, and paid the employer's share of the taxes due on the earnings of the captains and crews. After making the appropriate claims for refunds, they sued for refunds in the District Court for the Eastern District of Louisiana. The District Court, sitting without a jury, determined after trial that the captains and crews were not respondents' employees for the purposes of these tax statutes. The trial court noted that both the FICA and the FUTA define 'employee' as any individual who has employee status under 'the usual common law rules' applicable to a determination of the master-servant relationship. It found 'without merit' the Government's contention 'that the common-law governing the relationship of the taxpayer and the fishermen in pursuing fishing ventures in the Gulf of Mexico and the Atlantic Ocean is the general maritime law.' 271 F.Supp. 249, 257 (1967). The court found further that the degree of control exercised by respondents over these fishing activities was not sufficient, under the common-law standards governing land-based occupations, to create the relationship of employer and employee between respondents and the captains and crews. Respondents were thus held entitled to their refunds.
On appeal, the Court of Appeals for the Fifth Circuit affirmed. It reviewed the facts and observed that 'it is clear that under maritime law the captain is the agent of the owner * * * and the crew hands are employees,' and that '(i)f we were free to apply maritime law as a test of the employer-employee relationship, we would reverse the decision of the district court.' 402 F.2d 956, 959 (1968).4 However, the Court of Appeals agreed with the District Court that the statutes' prescription of 'common law rules' barred application of maritime standards.
This conclusion conflicts with the approach of the Court of Claims in Cape Shore Fish Co. v. United States, 330 F.2d 961, 165 Ct.Cl. 630 (1964). In that decision the court found scallop fishermen, operating under arrangements similar to those here, to be employees of the shipowner for the purposes of these statutes. It reached this conclusion by applying to the facts the standards of maritime law. We granted certiorari in this case, 394 U.S. 996, 89 S.Ct. 1591, 22 L.Ed.2d 774 (1969), to resolve this conflict, and to clarify the application to maritime workers of these important federal statutes.
The parties agree that both the FICA and the FUTA impose taxes on employers measured by the compensation paid to employees, and that in terms of this case the two statutes define 'employee' identically. In the FICA 'employee' is defined to include 'any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee,' and the language of the FUTA is to the same effect.5 These definitions were not included in the original Social Security Act as it was adopted in 1935, which defined 'employee' merely by specifying that it 'includes an officer of a corporation,'6 but were added by amendment in 1948. We must consider the events that prompted the amendment.
In 1935 the draftsmen of the Social Security Act apparently thought it unnecessary to elucidate the meaning of 'employee' because they assumed that the term, as it was applied to varying factual situations, would be given the 'usual' meaning it bore at common law. See S.Rep.No.1255, 80th Cong., 2d Sess., 3—4 (1948). However, over the years of applying the Act to a myriad of work relationships, the lower federal courts developed somewhat varying approaches, certain courts relying more heavily on common-law precedents and others attempting to discern a special meaning for the term from the purposes of the legislation.7 In addition, the courts tended to look to local precedents to determine the common-law standards, producing different results for similar factual situations in various parts of the country.8 This divergence of views led this Court, in 1947, to render two decisions in an attempt to clarify the governing standards. United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757; Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947.
In Silk, the Court upheld the lower courts' determination that certain truck drivers were, under the circumstances, independent contractors rather than employees, but it upset a similar ruling with respect to a group of men who unloaded coal from railroad cars. In Bartels the Court, reversing the Court of Appeals, held that the members of certain dance bands were not employees of the owners of the dance halls at which they were engaged, despite contractual provisions characterizing them as employees. While the Court's opinions in these cases stressed many of the factors that had been important in common-law determinations of employee status, they also contained language that could be read to detach the question of statutory coverage from the common-law tests.9 The Court stated, in Bartels, that 'in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.' 332 U.S., at 130, 67 S.Ct., at 1550.
The report of the Senate Finance Committee on the resolution makes clear a congressional purpose to disapprove the proposed regulation and to reaffirm that determinations of employee status were to be based on the traditional legal tests. The Committee seems to have thought that the Silk and Bartels decisions had applied traditional common-law standards, despite the language in the opinions suggesting a less constrictive approach. However, nothing that the Treasury Department claimed support in those decisions for its contemplated new departure, the Committee declared: 'But if it be contended that the Supreme Court has invented new law for determining an 'employee' under the social-security system in these cases, then the purpose of this resolution is to reestablish the usual common-law rules, realistically applied.' Id., at 2.
'The proposed regulation discards the common-law rules for distinguishing the employer-employee relationship distilled from many decisions by many courts out of many insights of real situations, for a new rule of nebulous character.
'(T)he proposed regulation concerns itself mainly, as was stated to your committee by a witness at the hearings: '* * * with making it abundantly clear that on virtually no state of facts may anyone be certain whether or not he has a tax liability until the Commissioner has made up his mind about it." Id., at 7, 10, 11.
The Committee stated that, in contrast to the proposed regulation, whose 'basic principle * * * is a dimensionless and amorphous abstraction,' the existing regulation was 'not devoid of uncertainty, but its basis is in established standards of law which frame and limit its application.' Id., at 12. The conclusions stated in the House Report were similar. H.R.Rep. No. 1319, 80th Cong., 2d Sess. (1948).13 By the resolution, Congress unequivocally tied the coverage of these tax provisions to the body of decisional law defining the employer-employee relationship in various occupations.
'Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.
'Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, 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. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done.' S.Rep. No. 1255, supra, at 3.
Respondents argue that this language indicates a congressional intent that, where the maritime nature of a vocation makes impracticable the degree of control generally exercised by land-based employers over their employees, the land-based standards must nevertheless be applied, with the result that no 'employment' exists for the purposes of those statutes.
'For purposes of (the FICA), the term 'employee' means—(1) any officer of a corporation; or (2) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee; or (3) (any member of several specific occupations, not including fishing, when certain conditions are satisfied).' 26 U.S.C. § 3121(d).
'For purposes of (the FUTA), the term 'employee' includes an officer of a corporation, but such term does not include—(1) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an independent contractor, or (2) any individual (except an officer of a corporation) who is not an employee under such common law rules.' 26 U.S.C. § 3306(i).
Social Security Act § 1101(a)(6), 49 Stat. 647. The language of § 1101(a) (6) was carried over to §§ 1426(c) and 1607(h) of the Internal Revenue Code of 1939, the predecessors of present §§ 3121(d) and 3306(i) of Title 26, respectively. See 53 Stat. 178, 188.
Compare, e.g., Jones v. Goodson, 121 F.2d 176 (C.A.10th Cir. 1941); Radio City Music Hall Corp. v. United States, 135 F.2d 715 (C.A.2d Cir. 1943); United States v. Mutual Trucking Co., 141 F.2d 655 (C.A.6th Cir. 1944); McGowan v. Lazeroff, 148 F.2d 512 (C.A.2d Cir. 1945); United States v. Wholesale Oil Co., 154 F.2d 745 (C.A.10th Cir. 1946), with United States v. Vogue, Inc., 145 F.2d 609 (C.A.4th Cir. 1944); United States v. Aberdeen Aerie, etc., 148 F.2d 655 (C.A.9th Cir. 1945); Grace v. Magruder, 80 U.S.App.D.C. 53, 148 F.2d 679 (1945).
See S.Rep.No.1255, supra, at 6.
'* * * When (the problem of differentiating between employee and independent contractor) arose in the administration of the National Labor Relations Act, (29 U.S.C.A. § 151 et seq.), we pointed out that the legal standards to fix responsibility for acts of servants, employees or agents had not been reduced to such certainty that it could be said there was 'some simple, uniform and easily applicable test.' The word 'employee,' we said, was not there used as a word of art, and its content in its context was a federal problem to be construed 'in the light of the mischief to be corrected and the end to be attained.' We concluded that, since that end was the elimination of labor disputes and industrial strife, 'employees' included workers who were such as a matter of economic reality. * * * We rejected the test of the 'technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants.' * * * (National) Labor (Relations) Board v. Hearst Publications, 322 U.S. 111, 120, 123, 124, 128, 131, (64 S.Ct. 851, 88 L.Ed. 1170).
'Application of the social security legislation should follow the same rule that we applied to the National Labor Relations Act in the Hearst case.' 331 U.S., at 712—714, 67 S.Ct., at 1463.
1 Fed.Reg., pt. 2 at 1764 (1936), promulgated November 9, 1936 (Treasury Department); 2 Fed.Reg., Pt. 1, at 1276 (1937), promulgated July 20, 1937 (Social Security Board).
H.J.Res. 296, 62 Stat. 438; see H.R.Doc.No. 711, 80th Cong., 2d Sess. (veto message of President Truman). This 1948 amendment put the definitions in both statutes in the negative form now found in 26 U.S.C. § 3306(i), see n. 5, supra. The Social Security Act Amendments of 1950 restyled the predecessor of § 3121(d), giving it the form now possessed by that provision, without changing the applicable principles except to extend coverage to specified classes of workers irrespective of their common-law status. § 205, 64 Stat. 536; see H.R.Rep.No. 2771, 81st Cong., 2d Sess., 104 (1950); cf. S.Rep.No.1669, 81st Cong., 2d Sess., 17—18 (1950); H.R.Rep.No.1300, 81st Cong., 1st Sess., 80 91, 189—207 (1949).
In a report published just two weeks before the enactment of the resolution (commenting on H.R. 6777, a bill that contained the same amendment ultimately accomplished by the resolution), the House Committee on Ways and Means stated: 'Our failure to act may be further construed as conferring upon the administrative agencies and the courts an unbridled license to say, at will, whether an individual is an employee or an independent contractor * * *.
'(T)he basic, controlling factor is whether the policy of the Congress shall be to cover as employees only those who are employees under the common-law rule, or to cover a broader class of individuals under some nebulous hypothesis with no bounds to its application.' H.R.Rep.No. 2168, 80th Cong., 2d Sess., 9 (1948).
Subsequent amendments to the social security laws make it now even clearer that clasisfication of some maritime workers as employees will not threaten the social security fund. The Social Security Act Amendments of 1950 extended benefits coverage to the self-employed for the first time. 64 Stat. 502, 540; see H.R.Rep.No.1300, 81st Cong., 1st Sess., 9—10 (1949). Benefits for the self-employed are financed by taxes paid by them under the Self-Employment Contributions Act, 26 U.S.C. § 1401 et seq.; see H.R.Rep.No.1300, supra, at 135—145; S.Rep.No.1669, 81st Cong., 2d Sess., 153—166 (1950). Therefore, the captains and crewmen are eligible for social security benefits whether they are considered employees or self-employed.
A conclusion that maritime standards could not be applied might frustrate Congress' evident expectation that the FICA and FUTA legislation would apply to seamen, and specifically to fishermen. As noted above, the 1939 amendments extended the statutes to cover maritime employees. Additionally, 26 U.S.C. § 3121(b)(4) provides an exemption for service by aliens on foreign vessels, and § 3306(c)(17) exempts fishermen on vessels that do not exceed 10 tons in displacement. These provisions raise the inference that fishermen on larger vessels were expected to be covered, under the general 'common law rules' provision. However, if shipowners were relieved of the employers' tax liabilities unless their relationship with the captains and crews were of the sort that would constitute an employer-employee relationship in a land-based activity, application of the statutes to fishermen might be seriously limited.
See, e.g., Cape Shore Fish Co. v. United States, 330 F.2d 961, 965—968, 165 Ct.Cl. 630, 637—641 (1964); G. Gilmore & C. Black, The Law of Admiralty § 4—21 (1957).
See, e.g., Radio City Music Hall Corp. v. United States, 135 F.2d 715, 717—718 (C.A.2d Cir. 1943).
'Ample flexibility is possible under (the common-law) rule to accommodate peculiar or unusual employment relationships so frequently found in our complex economic system.
Other factors that may have significance are discussed in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947); Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); Kirkconnell v. United States, 347 F.2d 260, 171 Ct.Cl. 43 (1965); Illinois Tri-Seal Products, Inc. v. United States, 353 F.2d 216, 173 Ct.Cl. 499 (1965).
We find no support for a contrary conclusion in the fact that, shortly after the District Court's decision in this case, the Treasury Department unsuccessfully sought an amendment to § 3121(d)(3) defining 'employee' to include the captains and crews of commercial fishing vessels without regard to their status under the general definition in § 3121(d)(2), see n. 5, supra. See the bill that became the Social Security Amendments of 1967, H.R.12080, §§ 504(b), (1), (2) (as amended by the Senate); S.Rep.No.744, 90th Cong., 1st Sess., 203—205, 320—324 (1967); H.R.Rep.No.1030, 90th Cong., 1st Sess., 74 (1967) U.S.Code Cong. & Admin.News, p. 2834. (Conference Report deleting the amendment). That the Treasury also chose to proceed on the legislative front does not impair the argument put forth by the United States here, and Congress' failure to adopt the amendment is a dubious indication of the position of Congress in 1967 on the question before us, let alone the position of a different Congress in 1948. Cf. United States v. Price, 361 U.S. 304, 310—312, 80 S.Ct. 326, 330—331, 4 L.Ed.2d 334 (1960); United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 1358, 8 L.Ed.2d 590 (1962).


text:
Although police officers certainly engage in unethical behaviors, practitioners who work in the court also have the potential to act in an inappropriate or unscrupulous manner. This is because, to varying degrees, court personnel such as prosecutors, defense attorneys, and judges have discretionary powers. When faced with ethical dilemmas, they can take decisions one way or the other, because moral obligations have finer shades (Souryal, 2006).
Some prosecutors, for example, may behave unethically. Prosecutors exercise a great deal of discretion as they decide which cases should go to trial and which should be dismissed. In theory, they must try to seek justice and not merely a conviction. However, on occasion they are driven by personal ambitions rather than justice. Some prosecutors treat their current jobs as stepping-stones to other lucrative jobs (Kleinig, 2008; Pollock, 2007). This might compromise their undivided service to the public. They also are greatly involved in the process of plea bargaining, where the presumption of innocence is compromised and the defendant pleads guilty in exchange for a promise of lesser charges or less sentencing. At times, another ethical issue arises when the defendant refuses to accept a plea bargain and the prosecutor acts in a retaliatory manner during the trial.
In addition to the ethical issues inherent in the plea bargaining process, prosecutors may also intentionally attempt to compromise the trial process (Kleinig, 2008). This can be done by a practice known as jury skewing (Kleinig, 2008, p. 126).
According to Kleinig (2008), jury skewing occurs when prosecutors seek out jurors who are partial or biased in their favor. It should be noted that although some scholars consider this practice to be unethical, it is nevertheless perfectly legal, unless a prosecutor discriminates on the basis of race, ethnicity, or gender as per Batson v. Kentucky (1986).
In addition to engaging in jury skewing, prosecutors may also behave unethically by withholding exculpatory information that may affect the outcome of a criminal case in favor of the defendant (Kleinig, 2008). In Brady v. Maryland (1863), the U.S. Supreme Court held that the suppression of exculpatory information is a violation of the due process rights of criminal defendants. Prosecutors are also likely to use questionable expertise because of the relationship the government has with forensic laboratories. Kleinig (2008) identified other examples of prosecutorial misconduct, such as coaching witnesses, overstatement about the evidence in the opening and closing statements, and zealous resistance to appeals that may reflect poorly on their work. Prosecutorial misconduct can be explained by utilitarianism and egoism, focusing on the consequences of their wrong actions, but such actions are definitely not justified by any deontological ethical system that recognizes that the inherent nature of the act must be good.
Like prosecutors, defense attorneys also have the potential to behave unethically. The job of a defense attorney is to ensure that defendants are not deprived of their due process rights. Their loyalty lies solely to their clients and not to the public. At times, however, defense attorneys pursue this goal too zealously to prove their defendants’ innocence. At such a time, they should be careful not to encourage or allow perjury by their clients (Kleinig, 2008). The attorney–client privilege is a very important aspect of the representation of a client. This confidential and loyal relationship is important to ensure proper representation of a defendant, which is possible only after a complete knowledge of the facts of the case. A defense attorney’s job is not to judge whether the client is guilty or innocent but to ensure that the client gets a fair representation and that all due process rights are protected (Pollock, 2007). This confidentiality can be broken only under four circumstances: (1) The defendant can waive it, (2) by court order, (3) if the defendant expresses his intent to commit a future crime or fraud, and (4) if the defendant tries to implicate the attorney in some criminal enterprise (Pollock, 2007).
There are times when the defense attorney fails to represent his or her client effectively. Several cases alleging ineffective assistance of counsel have been filed, but this has been a ground hard to prove. In United States v. Cronic (1984), the U.S. Supreme Court held that a claim of ineffective assistance of counsel can be made only by pointing out specific errors made by the trial counsel. It cannot be based on an inference drawn from the defense counsel’s inexperience or lack of time to prepare, the gravity of the charges, the complexity of the defense, or the accessibility of witness to counsel. In Strickland v. Washington (1984), the court ruled that an accused who claims ineffective counsel must show deficient performance by counsel and a reasonable probability that but for such deficiency the result of the proceeding would have been different.
There have been cases in which the defense attorney was found silent and even sleeping during the proceedings in court. In Burdine v. Johnson (2001), a defense lawyer for a capital offense defendant kept falling asleep during the trial. Convicted and sentenced to death, the defendant appealed, claiming he was denied the constitutional right to effective counsel. The Fifth Circuit concluded that Burdine did not have the benefit of effective counsel and therefore ordered a new trial. The U.S. Supreme Court refused to hear the case on appeal; thus, the decision to give Burdine a new trial was upheld. In Ex parte McFarland (2005), the court of criminal appeals held that although the lead defense attorney had slept through portions of the trial, the defendant was not deprived of assistance of counsel because his second attorney was present and an active advocate at all times.
In Bell v. Cone (2002), the court allowed a death sentence to stand even though the defendant’s lawyer failed to make an argument to the jury to save his life. In this case, Cone was tried and found guilty of capital murder. During the sentencing stage, the sequence was for the prosecution to argue first, then the defense lawyer, and then the prosecutor again. A junior prosecutor argued first for the prosecution. The defense lawyer then decided to waive his argument, because under court rules the prosecutor could not argue a second time if the defense lawyer waived the argument. This was done by the defense lawyer as a strategy so that the senior prosecutor, who was a highly effective lawyer and who was going to give the second prosecution argument, could not say a word. The jury gave the defendant the death penalty anyway. Cone appealed, claiming ineffective counsel. The court upheld the sentence, saying that Cone’s constitutional right had not been violated because what the defense lawyer used as a strategy was reasonable.
In Mickens v. Taylor (2002), Mickens was convicted of murder and sentenced to death. He claimed ineffective assistance of counsel because he discovered, after the trial, that his attorney had represented the victim on unrelated charges. This was never revealed to Mickens. The U.S. Supreme Court rejected his claim, saying that a defendant who claims that the right to counsel was violated because of a conflict of interest must show that the conflict had a negative effect on the attorney’s representation and that there was a reasonable probability that the result would have been different. The court concluded that “dual representation” in and of itself merely represents a “theoretical division of loyalties” and did not require a reversal of the results.
Just as both prosecutors and defense attorneys have the potential to behave unethically, judges are also not immune to engaging in inappropriate behaviors. The most important ethical responsibility of a judge is to be impartial. For this, judicial independence and integrity are vital. Judicial independence could mean both the independence of the judiciary from the other branches of the government and the personal independence and integrity of the judges so that they are not influenced by other considerations in their function as judges (Kleinig, 2008). The Code of Judicial Conduct Canon 2 (1990) says that a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. Also, as per the Code of Judicial Conduct Canon 2 (C) (1990), a judge should not hold membership in any organization that discriminates on the basis or race, religion, gender, or national origin.
Judicial accountability is yet another aspect that holds judges responsible for their actions. Judges are to disqualify themselves from cases in which their impartiality might be questioned, as in cases in which they might have a financial or other interest (Barua, in press). This was reinforced by the approval of the Judicial Conference Policy for Mandatory Conflict Screening on September 19, 2006. This policy mandated an automated conflict screening to identify any financial conflict that federal judges might have in cases that come before them. Besides this, judges are often invited to attend educational trips sponsored by certain organizations. This sometimes gives rise to an ethical issue that judges would be biased toward the sponsors of these programs or toward corporations in which they might have a financial interest.
It is more the appearance of impropriety than an actual unethical action of a judge that creates concerns (Barua, in press). On September 19, 2006, the Judicial Conference Policy on Judges’ Attendance at Privately Funded Educational Programs was released. It mandated that a federal judge should not accept travel, food, lodging, reimbursement, or anything that would be considered a gift under the Judicial Conference Ethics Reform Act Gift Regulations for attending a private educational seminar, unless its sponsor has filed a public disclosure statement on the content of the program and all sources of funding for the judges’ expenses. These two policies were aimed to allay the fears of unethical behaviors that the public might have about federal judges (Barua, in press).
The two areas where judges exercise their discretion are (1) interpretation of the law and (2) sentencing (Pollock, 2007). While interpreting laws, judges can get caught up in hypertechnical application of laws at the cost of equity and fairness (Pollock, 2007). Before the federal sentencing guidelines, sentencing disparities existed because of different sentencing patterns of individual judges (Hofer, Blackwell, & Ruback, 1999).Whatever may be the situation and the case, judges are expected to be fair, just, and impartial and to mete out equal treatment to all and sundry, upholding the neutral position of the judge and behaving in a manner that behooves a judge and the pristine judicial office. As this section of the research paper has shown, however, some judges may behave unethically. Like other practitioners who work in the court, judges also have the potential to behave irresponsibly or in an unprofessional manner.

matches: v. v. v. v. v. v. v.


Daniel J. Voelker (argued), Freeborn & Peters, Chicago, IL, for Plaintiff-Appellant.
James J. Long (argued), Briggs & Moran, Minneapolis, MN, for Defendant-Appellee.
The district judge granted summary judgment for the defendant, Polaris, a manufacturer of snowmobiles and other vehicles, in this diversity suit by ConFold for breach of contract and unjust enrichment. Polaris used to ship its vehicles in disposable containers, but in 1993 it began considering the possibility of using returnable containers instead. ConFold was a new company that wanted to produce such containers, and in the following two years, assisted by a management consulting and software development firm named CAPS Logistics, it conducted a "reverse logistics analysis" of Polaris's shipping needs. That is an analysis of how best to deal with goods returned by customers, for example whether to refurbish and resell them, recycle them, reuse their components, sell them as scrap, or tell the customer to discard them. Sarah Mason, "Backward Progress," Industrial Engineer, Aug. 1, 2002, p. 3; Patricia J. Daugherty, "Information Support for Reverse Logistics: The Influence of Relationship Commitment," 23 J. Bus. Logistics 85 (2002). It was conducted pursuant to an agreement, prepared by ConFold, between it and Polaris that was entitled "Mutual Non-Disclosure Agreement — Logistics Consulting Version." That agreement is the basis of ConFold's claim of breach of contract.
Two months after the agreement was signed, Polaris requested proposals for the design of a returnable container that would fit its needs. The request was sent to nine firms, including ConFold. All ConFold was told was that "your design will be one of nine considered at this point." Polaris accepted none of the proposals. But a few years later it designed a returnable container and subsequently began using containers manufactured by a firm to which it had given the design. ConFold claims that Polaris's design was based on the design that ConFold had submitted to Polaris in response to the request for proposals.
The breach of contract issue is whether the "Mutual Non-Disclosure Agreement — Logistics Consulting Version" bound Polaris not to reveal to a third party any returnable-container design that ConFold submitted to Polaris. The title of the contract suggests it did not, that the scope of the nondisclosure agreement was confined to reverse logistics analysis. The suggestion is reinforced by the timing; for when the contract was signed, the dealings between the parties related only to that analysis, which ConFold was to conduct for Polaris. The preamble to the contract states, moreover, that "ConFold has information relating to its proprietary software systems, documentation, and related consulting services which it considers to be proprietary," and the phrase "software systems, documentation, and related consulting services" refers to the reverse logistics analysis itself, for it was to that analysis that the software, documentation, and consulting services pertained. The implication is that the only proprietary information that ConFold would be revealing to Polaris would be information relating to the analysis.
This interpretation is bolstered by the statement in the contract that it is the "entire Agreement between the two parties concerning the exchange and protection of proprietary information relating to the program" (emphasis added). The only program in the contemplation of the parties was the software program to be used to produce the reverse logistics analysis, and the information that would be proprietary was the software and other materials relating to that analysis. It is one thing to determine whether a customer ought to switch to returnable containers and another to design the containers that the customer will use if he does switch. There is no hint in the contract that the design of containers was within its scope.
The district judge might have decided that the contract unambiguously excluded design information, in which event no evidence beyond the contract itself would have had to be considered. Especially when dealing with a substantial contract between "commercially sophisticated parties . . . who know how to say what they mean and have an incentive to draft their agreement carefully," Bank of America, N.A. v. Moglia, 330 F.3d 942, 946 (7th Cir. 2003), there is great merit to the rule that the meaning of an unambiguous contract is a question of law rather than of fact, e.g., Columbia Propane, L.P. v. Wisconsin Gas Co., 250 Wis.2d 582, 640 N.W.2d 819, 826 (2001), rev'd on other grounds, 261 Wis.2d 70, 661 N.W.2d 776 (2003); Insurance Co. of North America v. DEC Int'l, Inc., 220 Wis.2d 840, 586 N.W.2d 691, 693 (1998), with the consequence "that unambiguous contractual language must be enforced as it is written." Town of Neenah Sanitary Dist. No. 2 v. City of Neenah, 256 Wis.2d 296, 647 N.W.2d 913, 916 (2002); see also Folkman v. Quamme, 264 Wis.2d 617, 665 N.W.2d 857, 864 (2003). The rule enables contract disputes to be resolved quickly and cheaply, "protects the parties against the vagaries of the litigation process — a major reason for committing contracts to writing — without too great a risk of misinterpretation," and by thus minimizing both contractual transaction costs and uncertainty increases the value of contracts as means of conducting business. Bank of America, N.A. v. Moglia, supra, 330 F.3d at 946.
Enforcing contracts as written has particular merit when the party that drafted the contract, which is to say ConFold (though, as we'll see, ConFold was largely copying an earlier contract drafted by someone else), is arguing that it should be relieved from the consequences of having neglected to spell out its rights concerning the very core of the transaction. Walters v. National Properties, LLC, 282 Wis.2d 176, 699 N.W.2d 71, 75 (2005); Tranzact Technologies, Ltd. v. Evergreen Partners, Ltd., 366 F.3d 542, 546 n. 2 (7th Cir. 2004); Harris v. Union Electric Co., 787 F.2d 355, 365 n. 7 (8th Cir. 1986). For the only subject of the contract was confidentiality. Polaris, though it knew that ConFold manufactured returnable containers, couldn't be expected to peek into ConFold's mind and discover that ConFold thought the duty of confidentiality extended to materials, namely container designs, that were neither mentioned in the contract nor germane to the project for which Polaris had hired ConFold, which was a consulting rather than a design project.
It is true that a contract can be clear on its face — clear, that is, to a reader not familiar with the commercial context — yet still be ambiguous when that context is restored. That is the domain of "extrinsic" or "latent" ambiguity. Dispatch Automation, Inc. v. Richards, 280 F.3d 1116, 1121 (7th Cir. 2002); Evergreen Investments, LLC v. FCL Graphics, Inc., 334 F.3d 750, 756 (8th Cir. 2003); Mews v. Beaster, 279 Wis.2d 507, 694 N.W.2d 476, 479 (2005). The parties to a sale of cotton may have specified that the cotton be shipped on the ship Peerless — nothing ambiguous about such a provision to the uninformed reader — but if it turns out that there are two ships by that name to which the contract might refer, the contract is revealed as ambiguous and extrinsic evidence (evidence beyond the words of the contract) is admissible to help resolve the ambiguity. Raffles v. Wichelhaus, 2 H. & C. 906, 159 Eng. Rep. 375 (Ex. 1864).
The district judge found the contract in this case ambiguous, but not because of anything in the commercial context. Rather, he thought it ambiguous on its face, requiring him to consider extrinsic evidence, First Bank & Trust v. Firstar Information Services, Corp., 276 F.3d 317, 322 (7th Cir. 2001) (Wisconsin law), because of the further statement in the preamble that "ConFold and Polaris are desirous of exchanging information for purposes of both companies developing future business with each other." The referent of "future business" could just be the reverse logistics analysis, which had not begun because Polaris refused to approve the project until a confidentiality agreement was signed; it was in response to that demand that Confold submitted the agreement. But a more natural reading, reinforced by the fact that the quoted language is in that agreement and the logistics analysis is the subject of the agreement and thus "present" rather than "future" business, is that the reference was to a possible future sale by ConFold of returnable containers to Polaris. The parties hoped not only that the exchange would enable successful completion of the analysis but also that, if so, it might provide the foundation for a fruitful relationship at the next stage, when (and if) Polaris went into the market to buy returnable containers, possibly from ConFold. It is not unusual for a firm to be hired first as a consultant to advise a buyer on his needs, and later, when those needs are formulated, to bid to supply them; and ConFold's initial proposal to Polaris for the reverse logistics analysis actually quoted a price for additional services — including design.
The quoted language is best understood, however, as merely an explanation for why the parties were exchanging information, and committing to its confidentiality, concerning the reverse logistics analysis. They hoped to do future business; they did not commit to. ConFold's interpretation lacks sensible limits. It spreads the blanket of confidentiality over "exchanging information" — any information. This would require that any information the parties exchanged, including their phone numbers, be kept confidential (forever?), and that is an implausible intention to impute to them.
But having rightly or wrongly decided that the contract was ambiguous, the district judge turned to the extrinsic evidence — and concluded that it clinched Polaris's interpretation of the contract rather than creating a triable issue. The briefs in our court contain a confusing discussion of how a court should treat extrinsic evidence under various assumptions. ConFold mistakenly concedes that if that evidence is undisputed, the judge can interpret the contract without recourse to a trial. Not so; for if there is tension between that evidence and the words of the contract, or if for any other reason the meaning of the contract remains uncertain even after the extrinsic evidence is presented, there must be a trial to determine the contract's meaning. In re Modern Dairy of Champaign, Inc., 171 F.3d 1106, 1109 (7th Cir. 1999); Mathews v. Sears Pension Plan, 144 F.3d 461, 468 (7th Cir. 1998). The task of the trier of fact in a contract case includes putting together bits and pieces of evidence in order to create a convincing mosaic of meaning, rather than just resolving outright conflicts in extrinsic evidence. Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1205 (7th Cir. 1984) (Wisconsin law).
Nevertheless the undisputed extrinsic evidence so strongly supported Polaris that, considering that the language of the contract was only minimally ambiguous, a trial could have had but one outcome. For it turned out that the confidentiality agreement had been copied from ConFold's confidentiality agreement with CAPS, a contract drafted by CAPS and limited to that firm's proprietary software and related intellectual property; CAPS does not design containers. Moreover, ConFold had a form confidentiality agreement "specific for design" but did not ask Polaris to sign it.
So summary judgment was properly granted on the contract claim, and we turn to the other claim, which is for unjust enrichment. ConFold contends that by exploiting its design for returnable containers Polaris wrongfully enriched itself to the tune of more than $25 million. Polaris denies that the returnable containers that it is using are based on ConFold's design, but the district judge did not reach that issue; nor need we.
ConFold argues that Minnesota law governs the unjust enrichment claim, Polaris that Wisconsin law does. (The contract claim is governed by general principles of contract law, rather than anything special to the law of either state.) Wisconsin law denies recovery for unjust enrichment if all the defendant has done is use (to his profit) an idea of the plaintiff that is not a trade secret. Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis.2d 202, 267 N.W.2d 242, 249 (1978); Abbott Laboratories v. Norse Chemical Corp., 33 Wis.2d 445, 147 N.W.2d 529, 541 (1967). Minnesota law contains hints of a contrary view. Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 302, 306-07 (Minn.App.1987); Tate v. Scanlan Int'l, Inc., 403 N.W.2d 666, 671-72 (Minn.App.1987); Micro Display Systems, Inc. v. Axtel, Inc., 699 F. Supp. 202, 205 (D. Minn. 1988) (Minnesota law). We doubt that there is a real conflict, for reasons explained below. But in any event the district judge was correct that Wisconsin would apply its own law to a case such as this. The Wisconsin cases adopt a presumption in favor of applying Wisconsin law to cases litigated in the state, as this case was. State Farm Mutual Automobile Ins. Co. v. Gillette, 251 Wis.2d 561, 641 N.W.2d 662, 676 (2002); Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 204 N.W.2d 897, 902-03 (1973); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408, 416-17 (1965). The presumption, the district judge rightly concluded in granting summary judgment for Polaris on this branch of the case as well, has not been rebutted, especially when we consider that ConFold both is incorporated in Wisconsin and, more important, has its principal place of business there. Beloit Liquidating Trust v. Grade, 270 Wis.2d 356, 677 N.W.2d 298, 306-07 (2004).
The parties have hurled at us a bewildering array of terms on this branch of the case — "unjust enrichment," of course, but also "restitution," "trade secret," "misappropriation," "quasi-contract," "quantum meruit," and others. Let us try to make sense of them. (Proliferation of terms is a bane of the law.) "Unjust enrichment," and its synonym "restitution," has two referents, a remedial and a substantive. The remedial is to a situation in which a tort plaintiff asks not for the damages he has sustained but instead for the profit that the defendant obtained from the wrongful act. Hoagland ex rel. Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 385 F.3d 737, 744-45 (7th Cir. 2004). If Polaris by copying (we are assuming) ConFold's design saved money, that was a gain to which ConFold is entitled — provided the copying was a wrongful act.
In its substantive sense, unjust enrichment or restitution refers primarily to situations in which either the defendant has received something that of rights belongs to the plaintiff (for example, he received it by mistake — or he stole it), or the plaintiff had rendered a service to the defendant in circumstances in which one would reasonably expect to be paid (and the defendant refused to pay) though for a good reason there was no contract. An example of the second case is that of the physician who renders services to an unconscious person and later sends him a bill that the patient refuses to pay. In re Crisan's Estate, 362 Mich. 569, 107 N.W.2d 907, 910-11 (1961); Cotnam v. Wisdom, 83 Ark. 601, 104 S.W. 164 (1907). In either case, restitution of the value of the benefit received (the mistaken payment in the first case, the normal fee for such a medical service in the second) enforces reasonable expectations.
The physician case, however, also parades under the name of "quasi-contract," on which see, e.g., Goldstick v. ICM Realty, 788 F.2d 456, 467 (7th Cir. 1986). For the court is constructing a contractual relationship in order to bring about the result for which the parties probably would have contracted had contracting been feasible in the circumstances, which it was not. A quasi-contract must not be confused with a "contract implied in fact," which is a contract "in which behavior takes the place of articulate acceptance." Brines v. XTRA Corp., 304 F.3d 699, 703 (7th Cir. 2002); see also Theuerkauf v. Sutton, 102 Wis.2d 176, 306 N.W.2d 651, 657-58 (1981); Schwartz v. Federated Realty Group, Inc., 148 Wis.2d 419, 436 N.W.2d 34, 36 (1988); E. Allan Farnsworth, Contracts § 3.10 (4th ed.2004). A "contract implied in fact" is thus a species of express contract, Schwartz v. Federated Realty Group, Inc., supra, 436 N.W.2d at 36 n. 2, rather than one constructed by the court.
Similar to quasi-contract is "quantum meruit," which means suing for the value of a service rendered under circumstances in which payment was reasonably expected but the parties' contract was unenforceable, for example because it did not comply with the statute of frauds. Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005). In both the physician case (quasi-contract) and the statute of frauds case (quantum meruit), the plaintiff is entitled to the market value of his services rather than to the benefit that he conferred on the defendant, which might be much greater — for example if the plaintiff physician had saved the defendant's life. The court tries to simulate a competitive market; and in such a market, price is based on the cost to the seller rather than on the subjective value to the buyer, which often is much greater. But the benefit received by the defendant is the proper measure of relief when he has appropriated something of value belonging to the plaintiff. On the distinction, see Ramsey v. Ellis, 168 Wis.2d 779, 484 N.W.2d 331, 333-34 (1992).
These interlocked, in some cases identical, theories of recovery have no application to this case. Firms constantly disseminate information without expectation of payment. It would be ridiculous to think that ConFold could simply have mailed its container design to every company in the world that uses containers and then gone around and sued all the companies that used the design. It is different if the design is patented or the recipient agrees not to use it, but then (since there is no patent claim here, although there is indeed such an animal as a design patent — as will turn out to be relevant to our analysis) we are back to the contract claim that the district judge properly rejected.
With the terms "trade secrets" and "misappropriation" we come at last to the issue that seems to divide Wisconsin and Minnesota but probably does not. ConFold believes mistakenly that a trade secret is a property right in the same sense in which a person has a property right in his mattress. A property right in the latter sense is a right good against the whole world, which a trade secret is not, because it is perfectly lawful to "steal" a firm's trade secret by reverse engineering. Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 155-56, 109 S. Ct. 971, 103 L. Ed. 2d 118 (1989); Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 179 (7th Cir. 1991); American Can Co. v. Mansukhani, 742 F.2d 314, 334 n. 24 (7th Cir. 1984) (Wisconsin law). In contrast, a patent right is good against the whole world. A copyright is not because independent discovery is a defense to a copyright — or a trade secret — claim; it is not a defense to a patent claim. But a copyright is a fuller property right than a trade secret, because copying is infringement; copying a trade secret, which is what reverse engineering does, is not.
A trade secret is really just a piece of information (such as a customer list, or a method of production, or a secret formula for a soft drink) that the holder tries to keep secret by executing confidentiality agreements with employees and others and by hiding the information from outsiders by means of fences, safes, encryption, and other means of concealment, so that the only way the secret can be unmasked is by a breach of contract or a tort. Wis. Stat. § 134.90(2) (c); Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 721-23 (7th Cir. 2003); Mangren Research & Development Corp. v. National Chemical Co., 87 F.3d 937, 942-43 (7th Cir. 1996). ConFold admits that its designs were not trade secrets.
In general, if information is not a trade secret and is not protected by patent, copyright, or some other body of law that creates a broader intellectual property right than trade secrecy does, anyone is free to use the information without liability. ConFold argues, however, that the common law of Minnesota imposes liability for such use if the defendant got hold of the information improperly. The argument is difficult to understand; if the information is not secret and not protected by any of the laws that create property rights in information, it is in the public domain and freely usable without need to commit a tort or a breach of contract to obtain it.
The cases on which ConFold relies — the Rehabilitation Specialists, Tate, and Micro Display Systems cases cited earlier — stand for the distinct proposition that while section 7(a) of the Uniform Trade Secrets Act (in force in Wisconsin, Wis. Stat. § 134.90(6) (a)) preempts most non-UTSA remedies for misappropriation of a trade secret, the victim can sue separately for a tort committed in the course of the misappropriation, such as a trespass. See also Frantz v. Johnson, 116 Nev. 455, 999 P.2d 351, 358 (2000). The proposition is controversial. It sounds like an end run around preemption, since misappropriation of a trade secret normally is not actionable without either a tort or a breach of contract, and the UTSA already exempts (in section 7(b) (1)) claims of breach of contract from being preempted. Robert Unikel, "Bridging the `Trade Secret' Gap: Protecting `Confidential Information' Not Rising to the Level of Trade Secrets," 29 Loy. U. Chi. L.J. 841, 887-88 (1998). At all events, with the contract issue resolved in Polaris's favor, no contention that it obtained ConFold's designs by tortious means, and no trade secrets, ConFold can get no traction from the Minnesota cases.
There is, however, another version of "misappropriation," unrelated to trade secrets, which ironically has a footing in Wisconsin law, see Mercury Record Productions, Inc. v. Economic Consultants, Inc., 64 Wis.2d 163, 218 N.W.2d 705, 709-11 (1974); see generally McKevitt v. Pallasch, 339 F.3d 530, 533-35 (7th Cir. 2003), but has never been mentioned in a Minnesota case (and remember that ConFold is contending that Minnesota law governs its misappropriation claim), on which ConFold might have tried to rely, though with dim prospects of success.
International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211 (1918), a decision no longer authoritative because it was based on the federal courts' subsequently abandoned authority to formulate common law principles in suits arising under state law though litigated in federal court, has inspired the common law of a number of states, including, it seems, Wisconsin. The Associated Press and the International News Service competed in gathering news to be published in newspapers. Barred during much of World War I by British and French censors from sending war dispatches to the United States, INS would paraphrase AP's war dispatches that had been published in east coast newspapers, and it was able to publish its paraphrases in west coast newspapers at the same hour because of the difference in time zones and in east coast newspapers only a few hours later. There was no copyright infringement, because INS was copying the facts reported in AP's dispatches rather than the dispatches themselves and anyway AP had not bothered to copyright its dispatches. And of course there was no trade secrecy. Nevertheless the Court held that AP was entitled to enjoin INS's copying as a form of unfair competition.
In an effort to keep this concept of unfair competition or misappropriation — this bequest by the Supreme Court to a number of states — within reasonable limits, the Second Circuit, in an influential opinion interpreting New York law, stated the elements of the tort as follows: "(i) the plaintiff generates or collects information at some cost or expense; (ii) the value of the information is highly time-sensitive; (iii) the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it; (iv) the defendant's use of the information is in direct competition with a product or service offered by the plaintiff; (v) the ability of other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality could be substantially threatened." National Basketball Association v. Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997) (citations omitted). ConFold has made no effort to establish these elements. Its misappropriation claim comes down to a claim of infringement of a design that it did not patent. Such a claim is preempted by patent law, as held by the Supreme Court in the Bonito case cited earlier. See also Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231-32, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 239, 84 S. Ct. 779, 11 L. Ed. 2d 669 (1964). The broader, INS-type claim probably is not preempted, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., supra, 489 U.S. at 154, 109 S. Ct. 971, but, as we have just noted, its elements have not been proved.


Michael E. Keeling appeals the District Court's orders granting the prison officials' motion to dismiss and Dr. Jesse's motion for summary judgment.1 We will affirm.
We begin our discussion with the District Court's order dismissing the retaliation claims against the prison officials. In order to state a claim for retaliation for engaging in protected conduct, Keeling was required to plead facts showing: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action at the hands of prison officials; and (3) a causal link between the exercise of his constitutional rights and the prison officials' decisions to punish him. Mack v. Warden Loretto FCI, ___ F.3d ___, 2016 WL 5899173, at *6 (3d Cir. Oct. 11, 2016).
For the reasons given by the District Court, Keeling failed to state a retaliation claim against Defendant Cicerchia. Keeling alleged that she retaliated against him by transferring him from A-Block to J-Block for naming her in a lawsuit he had filed 13 months ago. As the District Court concluded, the allegedly retaliatory transfer was too remote in time to infer an unlawful motive, see Watson v. Rozum, ___ F.3d ___, 2016 WL 4435624, at *3 (3d. Cir. Aug. 23, 2016), and Keeling has not provided any other facts linking the transfer to the grievance.
The District Court was also correct to dismiss Keeling's retaliation claim against Defendant Cirelli, who was assigned to investigate Keeling's grievance in which he claimed that Defendant Barrager had assaulted him. After Cirelli finished investigating that grievance, he cited Keeling with a misconduct for lying about the incident. These facts, even if proven true, are insufficient to show causation. Because several months passed between Keeling's filing his grievance against Barrager in March and Cirelli's decision to cite him with misconduct in early June, we agree with the District Court that the timing alone was not sufficient to suggest that Cirelli was retaliating. Keeling did claim that he had told the truth in his grievance, and that Cirelli wrongly concluded that Keeling was lying about Barrager's conduct. But that fact does not create any inference that Cirelli was retaliating against Keeling. Keeling also states, in conclusory fashion, that Keeling punished him on account of his grievance, but those conclusory allegations are not sufficient to survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
For the same reason, the District Court correctly dismissed Keeling's claim that Defendants Pall, Martin, or Zakaraukas retaliated against Keeling for filing grievances against Barrager.4 We have already explained that the time between Keeling filing his grievance and the Defendants' decision to cite him with misconduct did not suggest that they were retaliating against him. Keeling claims that Defendant Zakaraukas falsely alleged that Keeling withdrew one of his two grievances against Defendant Barrager, but that Defendants Pall, Martin, and Zakaraukas later investigated the grievance because it was not, in fact, withdrawn. Keeling also claims that Zakaraukas never prepared a written recommendation or report denying Keeling's grievance, and that the Defendants did not view the prison security video from every possible angle. None of these allegations, however, show any causal link between Keeling exercising his rights to file a grievance and the Defendants' decision to cite him with a misconduct for lying in his prison grievance. Therefore, we will affirm the District Court's dismissal of Keeling's retaliation claims.
The District Court also correctly dismissed Keeling's access to courts claim. To prove such a claim, Keeling was required to show (1) he suffered an actual injury—that is, that he lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and (2) he had no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial of access suit. Christopher v. Harbury, 536 U.S. 403, 415 (2005); see also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (per curiam). The District Court surveyed Keeling's various other cases and concluded that Keeling had not been prevented from actively litigating in any of them. We agree with the District Court's conclusion.
We will also affirm the District Court's grant of summary judgment in favor of Dr. Jesse. We begin with Keeling's allegations that Dr. Jesse retaliated against him, by ordering the removal of his medication, because he amended his complaint in two other lawsuits to add claims against different prison officials, but not her, challenging the removal of his single-cell status. Specifically, Keeling claimed that he amended his complaints in Keeling v. Damiter, a case he filed in the United States District Court for the Western District of Pennsylvania, and in Keeling v. Beggs, which he filed in a court in the Commonwealth of Pennsylvania. Dr. Jesse was entitled to summary judgment on Keeling's claims of retaliation because there was no record evidence that she was aware that he amended his complaints before she took the challenged action. See Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive that for protected conduct to be a substantial or motiv[at]ing factor in a decision, the decisionmaker[ ] must be aware of the protected conduct.”). As the District Court found, Keeling amended his complaint in Damiter after Dr. Jesse removed his prescription for medication. As a matter of law, she could not have acted to retaliate against before he ever exercised his First Amendment rights. Moreover, although Keeling did amend his complaint in Beggs several days before Dr. Jesse removed his prescription, and Keeling theorized that prison officials “must have” alerted Dr. Jesse to his amended complaint so that she could conspire with them to retaliate against him, that allegation lacks any factual support in the record. The only evidence in the record on this point comes from Dr. Jesse's affidavit: She avers that she did not know about Keeling's litigation, let alone that he amended his complaint in Beggs, before making her treatment decision. Dr. Jesse was thus entitled to summary judgment because she could not have changed his prescription as retaliation for an action about which she was unaware. See Ambrose, 303 F.3d at 493.
The District Court also correctly granted summary judgment on Keeling's claim that Dr. Jesse was deliberately indifferent to his serious medical needs. The District Court undertook a thorough review of Keeling's entire treatment history during his incarceration. The District Court noted that Keeling had received continuous evaluation and treatment for his mental health, and that the treating psychiatrists often reached different conclusions about whether Keeling needed psychotropic medication. The District Court further explained that Dr. Jesse, after evaluating Keeling several times, ultimately concluded that he did not need a prescription for psychotropic medication. As the District Court ruled, given Keeling's extensive treatment record and the record of Dr. Jesse's evaluation and treatment, no reasonable fact finder could conclude that Dr. Jesse was deliberately indifferent to Keeling's serious medical needs. Moreover, Keeling's claim presented, at most, a mere disagreement Dr. Jesse's treatment decision. That is insufficient to survive summary judgment. See Parkell v. Danberg, ___ F.3d ___, 2016 WL 4375620, at *14 (3d Cir. Aug. 17, 2016).
1. We write only for the parties, who are familiar with the facts and the history of this lawsuit.
2. Keeling also claimed that Defendant Barrager unlawfully retaliated against him and verbally abused him. However, Keeling does not argue on appeal that the District Court erred in dismissing those claims. Accordingly, we will not address them here. See Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002).
3. We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review de novo a district court's orders granting summary judgment and dismissing for failure to state a claim. See Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).
4. Keeling presented his factual allegations in a scattershot manner, without regard to chronology, and his complaint jumbled together numerous allegations against numerous defendants for the same actions. With regard to his misconduct citation, Keeling alleged that Defendant Cirelli issued the misconduct. However, in a different portion of his complaint, Keeling appeared to allege that Defendants Pall, Marin, and Zakaraukas issued the misconduct. We note that in reaching our decision, we have read Keeling's complaint in the light most favorable to him.
5. Because the prison officials were properly dismissed from this case, Keeling's motion to compel their discovery was correctly denied. See Iqbal, 556 U.S. at 686.
6. In his opening brief, Keeling complains that the District Court never ruled on his motion to amend his complaint. We note that the District Court did, in fact, deny Keeling's motion. We perceive no error in that determination because any amendment would have been futile. See Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). We will also affirm the District Court's denial of Keeling's motion to reconsider its grant of summary judgment. Keeling does not challenge that decision in his opening brief beyond his arguments discussed above, and we conclude that the District Court did not abuse its discretion in denying his motion to reconsider.


text:
A cultivar of Camellia japonica L. ‘Paeony form with 14-18 petals in 2 rows, inner petals small, twisted and confused. White with an occasional pink stripe.’ [Berlèse, 1840, Monographie ed 2 p.80, 225, quoted in the ICR]. William Herbert does not mention the pink stripes but they are evident in the illustration. [Berlèse Iconographie vol.II pl.177/1843].
Bred by William Herbert before 1837 and first described in the supplement to his Amaryllidaceae. ‘The finest double varieties of Camellia Japonica which I have raised are as follows: From the single white by the pollen of Pompone, 1. var. Spofforthiae, or Spofforth striped, very large and very double white, with a few pink stripes, and occasionally one or two anthers. 2. v. Maculosa, or Calypso, do. 3. v. Haylocki, or Haylock’s white; pure white, rarely a few anthers. 4. v. Eburnea, or Ebur; very vigorous, pure white; somewhat waratah shaped. 5. v. Nivosa, or Nitor; double white, variable in form. 6. v. Fortuita, or Fortuna; very like var. 1. 7. v. lactescens, or Luna; double white.’ [Herbert p.367].
Desideratum to Loddiges’ nursery on the 6th January 1845. Not recorded as received and there are no further records. [MP A2933-2, p.28]. ‘Haylockii’ is listed in the 1836 edition of Loddiges’ Nursery catalogue, a copy of which is held at Camden Park [CPA]. It is marked with an ‘x’ usually denoting common before or long introduced but its meaning here is unclear.

matches: v. v. v. v. v. v.


text:
The bill of complaint was filed September 12, 1896, and set forth that the railway company was authorized to construct and operate a railway in Provo Canon, Utah, on either of two routes described; that in March, 1896, it commenced the survey and location of a line of railroad through the canon, which line passed over certain tracts of unsurveyed lands of the United States, of which one Murphy was in possession, prior to the survey; that it became the owner of this right of way, [175 U.S. 639, 640] under an act of Congress affirming such rights, subject only to its obligation to pay the occupant the damages to his possessory right, which he subsquently released. The plaintiff further alleged that, while lawfully in possession of the land, the defendants set up an adverse claim, and by threats and force stopped its work and denied its right to use the land for railway purposes. A judgment was demanded that the adverse claim be decreed unfounded; that the right of the plaintiff be confirmed, and the defendants be enjoined from asserting their adverse claim or interfering with the plaintiff's possession.
It would appear from a supplemental transcript of the record filed in the supreme court of Utah, after its judgment upon the merits, that, prior to any further action being taken, and on or about December 5, 1896, the defendants, the Telluride Power Transmission Company, and the individual defendant Nunn, filed a petition for a removal of the case to the circuit court of the United States, on account of diversity of citizenship, except as to defendant Holbrook, who was charged with having no interest in the controversy, and with being a mere nominal party, and made such for the purpose of ousting the jurisdiction of the Federal court. Upon hearing the arguments of counsel, the petition was denied.
After filing an objection to the further exercise of jurisdiction by the state court, the defendants demurred to the bill of complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. No exception was taken by the defendants who united in an answer in which it was alleged that the defendant Holbrook had no interest in the subject-matter in controversy. The answer further denied the material allegations of the complaint, as well as the existence of the plaintiff as a corporation, and averred that the greater part of the bed of the canon was unsurveyed public land; that the defendants took possession of a large portion of these lands for the purpose of constructing a reservoir, and of other lands for canals, flumes, and small dams, in order to carry out the purpose of the enterprise for which they were chartered; that, in 1894, [175 U.S. 639, 641] they entered upon Provo Canon and made surveys for the purpose of ascertaining whether water power could be obtained for the production of electric current, and wether by storage in reservoirs water could be obtained for agricultural and mining purposes; and that thereafter they took possession of a large part of the public domain lying in the said canon, including the land in dispute, for the purpose of constructing a reservoir thereon; that, in order to complete this enterprise, they would require the whole of the canon, and that, if the plaintiff or anyone else should construct a railroad through the canon, this enterprise would be defeated; that in 1895 they began the construction of a flume, in order to obtain power with which to aid in the construction of a dam 85 feet high at Hanging Rock, the latter dam being intended to retain water for power and irrigation purposes; that they made surveys of the contour of the reservoir to be formed by the dam; that in the spring of 1896 they prosecuted the work upon the said surveys and flume; that prior to the plaintiff's entry into Provo Canon they, the defendants the Telluride Company and Nunn, had entered upon the unoccupied, unsurveyed public land therein, with the purpose of constructing an expensive dam and reservoir; and that, on September 12, 1896, when this suit was commenced, and for more than two years prior thereto, they were and had been in actual possession of the land in dispute.
The case was tried by the court without a jury. Findings of fact and conclusions of law were made by the court to the effect that the plaintiff had prior possession of the land, and that the adverse claim of the defendants was unfounded. A judgment was thereupon entered in favor of the plaintiff; its title to the lands in question confirmed and quieted; the adverse claim adjudged invalid, and the defendants enjoined from setting up claims or exercising rights adverse to those of the plaintiff. From this judgment, defendants, the Telluride Company, and Nunn, took an appeal to the supreme court of Utah, which affirmed the judgment of the district court. Whereupon these defendants sued out a writ of error from this court, assigning, amongst other things, as error, the failure of the [175 U.S. 639, 642] district court to remove the case to the circuit court of the United States.
Messrs. James H. Hayden, Joseph K. McCammon, and R. Harkness for defendant in error.
It is insisted that the case falls within the first category of cases specified in Rev. Stat. 709, 'where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity.' But the cases in which this clause has been applied are those wherein the validity of a statute, or of an authority exercised by a public official of the United States, has been called in question, and not those where a general right is set up under a statute. McGuire v. Massachusetts, 3 Wall. 387, 18 L. ed. 164; Millingar v. Hartupee, 6 Wall. 258, 18 L. ed. 829; Daniels v. Tearney, 102 U.S. 415 , 26 L. ed. 187; Sharpe v. Doyle, 102 U.S. 686 , 26 L. ed. 277; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257. The use of the word 'authority' in the third clause in connection with the word 'commission' favors the theory that a personal authority was intended, and not the assertion of an abstract right created by a statute.
We think the case falls more properly within the third clause, as one wherein a title or right is claimed under a statute of the United States. In such case such title or right must be 'specially set up and claimed' before judgment in the state court. This was not done in the case under consideration. In its complaint, the plaintiff railway company makes no allusion to this act, but relies upon an act of Congress respecting a right of way for railroads through public lands of the United States (18 Stat. at L. 482, chap. 152), and upon cer- [175 U.S. 639, 644] tain provisions of the local laws of Utah. The statute is not set up in the answer of the defendants, who relied upon their priority of possession. So, also, in the thirty-three assignments of error, filed by the defendants in the state supreme court, no reference is made to an act of Congress as the basis of their right, and no intimation is made that the district court erred in the construction or applicability of any such act.
In the opinion of the supreme court it is stated that the errors alleged raised the questions, first, whether there was not a statutory forfeiture of the plaintiff's charter, in consequence of a failure to complete and put its road in operation; second, whether plaintiff had the lawful right to locate its right of way in the canon, and had located it over the land in dispute, and was in actual possession thereof, when defendant interfered; third, whether the law required the plaintiff to file with the register of the land office a profile of its route; and, fourth, whether the defendants made such appropriation, or had such possession of the land in dispute as authorized them to hold it against the plaintiff. After discussing the validity of the plaintiff's charter, the powers granted by it, and the possession of the plaintiff, the opinion proceeds to consider whether the defendants had any right to the land in dispute, and in this connection finds that they might have obtained a vested right to own unappropriated waters of the Provo river for the purposes specified in their charter, and that such right is recognized and acknowledged by Rev. Stat. 2339, above cited, but professed itself 'unable to find from a preponderance of the evidence in the record, that the defendants or either or them, had appropriated the land in dispute, and that they were, or that either of them was, in actual possession of it when the plaintiff located its right of way, took actual possession, and engaged in grading it. We cannot regard the plaintiff as a mere intruder on the defendants' possession, nor can we hold that they had a right to prevent the plaintiff's employees from grading it and to eject plaintiff from actual possession. It is true that defendants had surveyed for dams and reservoirs at different points on the river, but they had not taken and did not hold actual possession of the land in dispute.' [175 U.S. 639, 645] The petition in error for the first time set up a right and authority under the mining laws of the United States (Rev. Stat. 2339), and charged that the decision of the trial court, as well as of the supreme court of the state, was against the authority and validity of the claim of the defendants. The assignments of error turn principally, if not wholly, upon the finding of prior possession on the part of the plaintiff, the refusal of the court to remove the cause, and its ruling that the plaintiff had the right under its charter to construct the road.
From this resume of the proceedings, it is evident that there was no denial to the defendants of any right they may have possessed by virtue of a priority of possession. The statute (Rev. Stat. 2339) provides that 'whenever, by priority of possession, rights to the use of water' for certain purposes 'have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions,' the owners of such vested rights 'shall be maintained and protected in the same,' and their right of way for the construction of ditches and canals acknowledged and confirmed. But in order to establish any rights under the statute it was incumbent upon the defendants to prove their priority of possession, or at least to disprove priority on the part of the plaintiff. The question, Who had acquired this priority of possession? was not a Federal question, but a pure question of fact, upon which the decision of the state court was conclusive. No construction was put upon the statute; no question arose under it; but a preliminary question was to be decided before the statute became material, and that was whether defendants were first in possession of the land. Even if priority of possession had been shown, it would still have been necessary to prove that defendants' right to the use of the water was recognized and acknowledged by the local customs, laws, and decisions, all of which were questions of state law.
In this connection, an attempt is made to distinguish between the findings of fact and the conclusions of law. Defendants concede that they are bound by the findings of fact upon the subject of possession, but that they are not [175 U.S. 639, 646] bound by the conclusions of law, which are as follows: First, that the plaintiff, prior to the commencement of the suit, had the possession, right of possession, and the inchoate title of the lands described; second, that the defendant company had no power in Utah to engage in generating electric power for sale; third, that defendants never had the title, possession, or right of possession, to the lands, or acquired any vested right in accordance with the laws or customs of the country, or any right to flow or otherwise occupy said lands, or prevent the use and occupation thereof by the plaintiff railroad company, and that their adverse claim was unfounded; fourth, that the plaintiff was entitled to judgment.
It is quite evident that these findings involved either questions of fact or questions of local law, and that while the finding of the ultimate fact of prior possession may possibly have been a legal conclusion, it was not a Federal question. In this particular the case is covered by Eilers v. Boatman, 111 U.S. 356 , 28 L. ed. 454, 4 Sup. Ct. Rep. 432, which was an action for the settlement of adverse claims to mineral lands. The case turned upon the priority of location, which the court held was a matter of fact, although the court below called it a conclusion of law.
The case under consideration in its material aspects resembles that of Bushnell v. Crooke Min. & Smelting Co. 148 U.S. 682 , 37 L. ed. 610, 13 Sup. Ct. Rep. 771, which was an action of ejectment growing out of conflicting and interfering locations of mining claims. As stated by Mr. Justice Jackson, 'the question presented on the trial of the controversy, under the pleadings, was purely one of fact, and had reference to the true direction which the Monitor lode or vein took after encountering a fault, obstruction, or interruption at a point south of the discovery shaft sunk thereon. . . . After the decision had been rendered by the supreme court of the state a petition for rehearing was presented by the plaintiffs in error, which, for the first time, sought to present a question whether 2322 of the Revised Statutes of the United States gave to the appellants " the exclusive right of possession' and enjoyment of all other veins or lodes having their apexes within the Monitor's surface ground." The court held it to be 'plainly manifest that neither the plead- [175 U.S. 639, 647] ings nor the instructions given and refused present any Federal question, and an examination of the opinion of the supreme court affirming the action of the trial court as to instructions given, as well as its refusal to give instructions asked by the defendants below, fail to disclose the presence of any Federal question.' In this connection Mr. Justice Jackson quotes the remark of the chief justice in Cook County v. Calument & C. Canal & Dock Co. 138 U.S. 635, 653 , 34 S. L. ed. 1110, 11 Sup. Ct. Rep. 435: 'The validity of a statute is not drawn into question every time rights claimed under such statute are controverted, nor is the validity of an authority every time an act done by such authority is disputed.' See also Doe ex dem. Barbarie v. Mobile, 9 How. 451, 13 L. ed. 212.
The position of the plaintiffs in error is that, as their whole case depended upon the rights asserted by them under 2339, and that, as the courts decided adversely to the rights claimed by them, there was no necessity of a special reference to that statute, relying in this connection upon such cases as Miller v. Nicholls, 4 Wheat. 311, 4 L. ed. 578; Satterlee v. Matthewson, 2 Pet. 380, 410, 7 L. ed. 458, 468, and others cited in Columbia Water Power Co. v. Columbia Electric Street R. Light, & Power Co. 172 U.S. 475, 488 , 43 S. L. ed. 521, 526, 19 Sup. Ct. Rep. 247, in which we have held that, if it sufficiently appear from the record that the validity of a state statute was drawn in question as repugnant to the Constitution of the United States, and the question was decided, or such decision was necessarily involved in the case, and the case could not have been determined without deciding such question, the fact that it was not in terms specially set up and claimed in the record is not conclusive against a review of the question here. But the difficulty in this case is that, before it could be said that any right or title under a statute of the United States had been denied, it was necessary to establish as a question of fact priority of possession on the part of the Telluride Company, as well as conformity to local customs, laws, and decisions. These were local and not Federal questions. The jurisdiction of this court in this class of cases does not extend to questions of fact or of local law, which are merely preliminary to, or the possible basis of, a Federal question.

matches: v. v. v. v. v. v. v. v. v. v. v. v.