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The Complainant is Symantec Corporation, Cupertino, California, United States of America, represented by SD Petosevic Romania SRL, Romania.
The Respondent is SC SOFTCONCEPT S.R.L., Targu Mures, Mures County, Romania.
The disputed domain name <symantec.ro> is registered with RNC.ro.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2008. On August 1, 2008, the Center transmitted by email to RNC.ro a request for registrar verification in connection with the domain name at issue. On August 4, 2008, RNC.ro transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 27, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 28, 2008.
The Center appointed Beatrice Onica Jarka as the sole panelist in this matter on September 9, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
- the Respondent’s default in filling the Response is indication that it does not oppose to English as the language of these proceedings.
The Complainant was founded in 1982 and is one of the world’s largest computer software companies. The Complainant is the sole and exclusive owner of all rights, title and interest in and to the trademark SYMANTEC and SYMANTEC & Design, which Complainant uses in connection with its products and services.
The Complainant has registered its SYMANTEC and/or SYMANTEC & Design marks throughout the world including Romania. The Complainant has for example a SYMANTEC mark that has been registered since April 21, 1992 in the United States of America, and several SYMANTEC & Design marks that have been registered in that jurisdiction since then.
Class 42 – Computer services; network and Internet, security services; providing service in the field of service applications; computer consultancy services; notification and delivery of software updates; providing information in the fields of computer network and Internet security and data storing; computer programming, design computer, software for others; licensing and leasing of computer software and intellectual property, hardware, peripherals and firmwares.
In addition, the Complainant has multiple registered domain names such as <symantec.net>, <symantec.nl>, <symantec.co.nl>, <symantec.de>, <symantec.org>, <symantec.info>, <symantec.us>, <symantec.com> and multiple hierarchies of it such as symantec.com/hu, symantec.com/ru etc.
The <symantec.ro> domain name was apparently first registered on January 1, 1996 (according to the Whois data and registrar’s verification reply).
The Respondent appears to be a Romanian Limited Liability Company set up in June 1999, which seemingly provides mainly computer software related services, web-design, desktop programming.
- The disputed domain name is identical and therefore confusingly similar to the Complainant’s SYMANTEC trademark, as used and registered by the Complainant, tradename and the main element of its registered domain names.
- Further to the receipt of the Cease and Desist letter sent by the Complainant, the representative of the Respondent, Mr. Suciu Alexandru, called the Complainant’s representatives and offered to transfer the <symantec.ro> domain name to the Complainant provided that he was compensated in the amount of two thousand (2,000) USD.
- The Respondent should be considered as having no rights or legitimate interest with respect to the disputed domain name, as the Complainant has not licensed the SYMANTEC mark or the disputed domain name to the Respondent and there is no relationship between the Complainant and the Respondent that would give rise to any license, permission or other right by which the Respondent could apply for or use any domain name or trademark incorporating any of the Complainant’s marks.
- The Respondent has never been commonly known by the disputed domain name and, thus, does not have any rights or legitimate interests in the disputed domain name on that basis.
- The Respondent does not produce or market any of its goods or services under the SYMANTEC name or mark.
- When the Complainant put the Respondent on notice of its rights, the Respondent did not put forward any legitimate claim to the disputed domain name.
- The Respondent’s representative, Mr. Alexandru Suciu, Administrator, agreed to transfer the <symantec.ro> domain name to the Complainant for compensation of two thousand (2,000) USD, an amount of money exceeding the out-of-pocket costs directly related to the disputed domain name.
- To the knowledge of the Complainant, the Respondent has not shown any use of, or preparations to use, the domain name in connection with a bona fide offering of goods or services.
- Although it was registered more then eight (8) years ago, the disputed domain name does not resolve to any website and it’s currently inactive.
- The Respondent is not making any legitimate noncommercial or fair use of the disputed domain name.
- The disputed domain name was registered in bad faith as the Respondent is engaged in similar or closely related business field as the Complainant is. The Respondent operates in the field of computer software and given the Complainant’s prominence in this field, it is reasonable to believe that the Respondent must have had knowledge of the Complainant’s activity, its products and services as well as its famous SYMANTEC trademark when registering the domain name.
- Since the Respondent does not use the SYMANTEC trademark, and the Respondent operates in the same niche of computer software as the Complainant, there is no doubt that the Respondent either knew or should have known of the Complainant’s prominent use.
- The Respondent’s bad faith is demonstrated by its offer to transfer the disputed domain name to the Complainant for compensation in the amount of two thousand (2,000) USD, which is in excess of his out of pocket costs directly related to the disputed domain name.
- The Respondent’s registered contact Mr. Alexandru Suciu is known in past WIPO cases to have acted in bad faith for example, Advanced Micro Devices, Inc. v. Softconcept S.R.L., Suciu Alexandru, WIPO Case No. DRO2008-0002.
- The fact that the disputed domain name had been registered but remained inactive since at least 2000, by which one can infer that the Respondent does not have a bona fide intention to make good use of the domain name.
- The Respondent’s registration of the <symantec.ro> domain name prevents the Complainant from legitimately registering its rights in the form of the sign SYMANTEC as a corresponding top-level domain name in Romania.
The Complainant holds trademark registrations for SYMANTEC and/or SYMANTEC & Design mark throughout the world including Romania.
The Respondent’s domain name <symantec.ro> is identical to the Complainant’s SYMANTEC mark, as it incorporates this mark in its entirety.
It is well established that the specific top level of the domain name such as “com” or “.ro” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar to a trademark (see Magnum Piering, Inc. v. The Mudjackers and Garwood S. & Wilson, Sr., WIPO Case No. D2000-1525, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429, Auchan v. Web4comm Srl Romania, WIPO Case No. DRO2005-0001; and OSRAM GmbH, v. web4COMM SRL Romania, WIPO Case No. DRO2005-0004).
The fact that the SYMANTEC trademark had been registered in Romania several years after the registration of the disputed domain name does not prevent this Panel finding that the disputed domain name is identical with trademarks in which the Complainant has rights. The Complainant has in any event had SYMANTEC marks registered in other jurisdictions around the world since at least 1992, several years before the disputed domain name was first registered.
For these reasons, the Panel finds the Complainant has established the first element of the Policy.
As well established in the WIPO UDRP jurisprudence (see Document Technologies, Inc. v. International Electronic Communications, Inc., WIPO Case No. D2000-0270 ; Chanel, Inc v Estco Technology Group, WIPO Case No. D2000-0413 ; Inter-Continental Hotel Corporation v. Khaled Ali Soussi, WIPO Case No. D2000-0252 ), once a complainant establishes a prima facie showing that none of the three circumstances establishing legitimate interests or rights apply, the burden of proof on this element shifts to the Respondent to rebut the showing.
In these proceedings, there are sufficient elements to consider that the Complainant established a prima facie showing that the Respondent does not have rights or legitimate interest with respect to the disputed domain name.
In this sense, the Complainant asserts that it has not licensed the SYMANTEC mark or the disputed domain name to the Respondent and there is no relationship between the Complainant and the Respondent that would give rise to any license, permission or other right by which the Respondent could apply for or use any domain name or trademark incorporating any of the Complainant’s marks.
Further the Complainant asserts that, the Respondent has never been commonly known by the disputed domain name and does not produce or market any of its goods or services under the SYMANTEC name or mark.
In addition, when the Complainant put the Respondent on notice of its rights, the Respondent did not put forward any legitimate claim to the disputed domain name.
And finally the Complainant asserts that although the disputed domain name was registered more then eight years ago, it does not resolve to any website and it’s currently inactive.
None of the assertions made by the Complainant were denied by the Respondent, who has failed to file a Response in these proceedings.
As prior WIPO UDRP panels (See Singapore Airlines limited v. European Travel Network, WIPO Case No. D2000-0641 ; Bayerische Motoren Werke AG v. Null, WIPO Case No. D2002-0937 ) have accepted, the silence of the Respondent might support a finding, based on other relevant circumstances, that it has no rights or legitimate interests in respect of the disputed domain name.
Considering this prior practice and the circumstances of this case, the Panel finds that in these proceedings the Complainant established a prima facie showing that the Respondent has no rights to or legitimate interests in the disputed domain name. The Panel, referring to the Respondent, has no indication whatsoever of any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services.
The Panel concludes that the Complainant has proved the second element of the Policy.
There are elements which indicate that disputed domain name was registered and is being used in bad faith.
The Respondent is seemingly engaged in similar or closely related business field as the Complainant. The Respondent appears to operate in the field of computer software and given the Complainant’s prominence in this field, it is reasonable to believe that the Respondent must have had knowledge of the Complainant’s activity, its products and services as well as its famous SYMANTEC trademark when registering the domain name.
In addition, in light of existing domain name registration regulations and the body of Policy-based administrative decisions (see Kabushiki Kaisha ASICS v. SC Gaticonstruct, WIPO Case No. DRO2008-0010), the Panel considers that before registration of a domain name there exists a reasonable due diligence obligation of the registrant to check whether the domain name to be registered infringes a third party’s trademark rights. In this case the exercise of such reasonable due diligence would have revealed the existence of the Complainant’s SYMANTEC trademarks and the potential for infringement of such trademarks rights by registering a domain name comprising these trademarks. The fact that on the Romanian territory the SYMANTEC marks got protection by registration with Romanian State office for Trademarks and Inventions only in 2006, after the disputed domain was registered does not in this age of the internet affect the exercise of such obligation incumbent to the Respondent. The notoriety and distinctiveness of SYMANTEC trademarks in the virtual space of the Internet is in this case sufficient for the Panel to infer that the Respondent registered the disputed domain name in order to benefit from such notoriety and distinctiveness.
Since the Respondent does not use SYMANTEC trademarks in apparent way other than in the registration of the disputed domain name, and since the Respondent operates in the same niche of computer software as the Complainant, there is no doubt in the Panel’s view that the Respondent either knew or should have known of the Complainant’s prominent use of the SYMANTEC mark.
The Respondent’s bad faith use of the disputed domain name is further demonstrated by its alleged offer to transfer the disputed domain name to the Complainant for compensation in the amount of two thousand (2,000) USD, which is in all likelihood in excess of his out of pocket costs directly related to the disputed domain name.
In addition, the Respondent’s registered contact Mr. Alexandru Suciu is known in past WIPO UDRP cases to have acted in bad faith for example, in Advanced Micro Devices, Inc. v. Softconcept S R L, Suciu Alexandru WIPO Case No. DRO2008-0002.
Moreover, the fact that the disputed domain name has been registered but remained inactive since 2000, cannot be interpreted as a bona fide intention to make good use of the domain name. On the contrary, from this fact one may infer that the Respondent’s registration of the <symantec.ro> domain name prevents the Complainant from legitimately registering its rights in the form of the sign SYMANTEC as a corresponding top-level domain name in Romania.
For these reasons, the Panel finds the Complainant has established also the third element of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <symantec.ro> be transferred to the Complainant.

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Peggy Garrett’s drug selling and use were known to Jeff’s prosecutors, but they failed to pass this information on to the defense. Prosecutors withheld Indiana police reports showing that in 1982 Peggy had been convicted of selling 5 pills of Methaqualone on one occasion and 6 tablets of LSD on another.[ii] The reports impeached her trial testimony that her conviction was for selling merely “a couple of pills”.
It is clear that if all this suppressed evidence had been available to the jury, the outcome of Jeff’s trial could have been different. It is clear that Jeff deserves a new trial.
[i] Information for this post is taken from: State of Ohio, Plaintiff-Appellee, vs. Jeffrey Wogenstahl, Defendant-Appellant. Case No. 2016-0423. Appellant Jeffrey Wogenstahl’s Motion to Remand Case to the Trial Court, filed in the Supreme Court of Ohio, October 7, 2016; pages 21 – 23, page 41 and pages 52 – 53.
[ii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 1 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, pages 110 to 120 (Exhibit 25).
[iii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 1 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 108 (Exhibit 23).
[iv] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, pages 49 – 51 (Exhibits 51, 52 and 53).
[v] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 54 (Exhibit 56).
[vi] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 55 (Exhibit 57).
[vii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 56 (Exhibit 58).
[viii] See State of Ohio v. Jeffrey A. Wogenstahl, 2016-0423, Volume 2 of Appendix to Appellant Jeffrey A. Wogenstahl’s Motion to Remand case to the Trial Court, filed October 7, 2016, page 38 (Exhibit 43).
This entry was posted in drugs, Jeffrey Wogenstahl, jurors, Ohio, Peggy Garrett, prodecutorial misconduct, suppressed evidence, USA and tagged Amber Garrett, August 2018, drug debts, drug trafficking, evidence suppressed, Indiana, Jeff Wogenstahl, Jeffrey Wogenstahl, jurors, LSD, Methaqualone, Ohio, Peggy Garrett, police records, prosecutorial misconduct, suppressed evidence, trial, USA, wrongful conviction. Bookmark the permalink.

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User – means a physic person at the age of at least 13, using the Chef Mate service via the Mobile Application, while the use of services by Users aged 13-18 is possible with the consent of a legal guardian.
Contract – means a contract for the provision of electronic services on the basis of which the Operator provides services to Users or Restaurateurs.
These Regulations define the rules for Users to use the Mobile Application and use the Services through the Mobile Application.
A prerequisite for the conclusion of the Agreement is acceptance of these Regulations.
The Operator provides Services in accordance with these Regulations and the Act on the provision of electronic services.
The contract for the provision of electronic services is concluded for an indefinite time period.
The condition for using the Services is to register an individual Account, provide the required data and accept these Regulations.
In order to register a User Account it is necessary to provide: nickname and e-mail address. The user can optionally provide information about his preferences as to the dishes, type of kitchen, price range.
In order to register a Restaurateur Account, it is necessary to provide: (restaurant name, address, and e-mail address.) The user can optionally provide information about the contact number.
The User has the right to terminate the Agreement at any time. The notice of termination submitted by the User should be submitted via e-mail, the message should be sent from the address provided in the User’s Account. The date of submission of the notice of termination shall be the date of receipt of the e-mail containing the termination notice.
The Restaurateur has the right to terminate the Agreement with a one-month notice. The notice of termination submitted by the Restaurateurs should be submitted via e-mail, the message should be sent from the address provided in the Restaurateur’s Account. The date of submission of the notice of termination shall be the date of receipt of the e-mail containing the termination notice.
The termination of the Agreement results in the deletion of the User’s account or the Restorer’s account, but this does not remove the content provided so far in the form of Reviews and Grading.
Data transmission costs are required to download, install, run and use the Mobile Application are covered by its Users or Restaurateurs independently on the basis of agreements concluded with telecommunications operators or other Internet provider. The Operator is not responsible for the amount of fees charged for the use of data transmission necessary to use the Mobile Application.
The access to a mobile device with iOS 8 or newer or Android 9 or higher installed.
The access to an Internet connection and an active GPS service.
All activities undertaken by the User or Restaurateurs as part of the Services offered should be in accordance with applicable law and good practices.
The Operator reserves the right to remove content inconsistent with the above rules.
The User may not have more than one Account.
The User or Restaurateur can not impersonate other entities.
The User and the Restaurateur are not allowed to use the Accounts of other Users or the Restaurateur and share their Account with other entities.
The User declares that he/she accepts the fact that by adding the Rating or Opinion their content will have the character of public content available to other Users and Restaurateurs.
The User has the right to send his/her Opinion directly to the Restaurateur.
When the GPS location is turned on, the Mobile Application indicates the User points located near the Use, which provide catering services.
The restaurateur has the right to send promotional offers to the Users.
Unless otherwise stated, the promotional offer expires after its completion or expiry of the period indicated in the offer. The offer is not transferable to another entity. It is also not exchanged for cash.
The terms and conditions of the promotional offer are set by the Restaurateur, and the Operator has no influence on their implementation and is not responsible for the terms of the promotional offer set by the Restaurateur.
The Operator makes all efforts to ensure the proper functioning of the Mobile Application in technical, formal and legal terms.
The Operator is not responsible for the content placed in the Mobile Application by its Users or Restaurateurs.
In the case of the third party’s claims regarding the unlawful violation of its rights by the User or the Restaurateur, he is obliged to take all factual and legal actions necessary to remove the consequences of infringements.
Complaints about irregularities in the performance of the Contract or the functioning of the Mobile Application may be submitted via e-mail or via traditional mail to the Operator’s data as indicated above.
Each complaint should contain an indication of the nickname, e-mail address and a description of the reservations.
The complaint will be considered by the Operator within 14 days from the date of receipt.
The use of services by the User is free of charge.
The use of the services for the restaurateur is payable on the terms of the subscription, with the exception of the first promotional 30 days of using the mobile application (promotional period).
The purchase of the Subscription is possible within the Restaurateur Account, using the order form available as part of the Mobile Application – for this purpose you must complete the next steps of the order form and make a payment.
In the event of the expiry of the subscription period, the Restaurateur may purchase the Subscription for subsequent periods in the same way as the first time.
If the Restaurateur cancels the purchased subscription, he will not receive a refund for the current billing period, but may use the subscribed content until the end of the billing period, i.e. until the end of the month.
in the case of the Mobile Application downloaded from the AppStore for mobile devices with the iOS system – payment via the Restaurateur chosen by the Restaurateur in the individual Apple Account of the payment method.
in the case of the mobile application downloaded from Google Play for Android mobile devices – electronic payments and card payments via Paylane.pl – current payment methods are available on the website http://www.Paylane.pl. Settlements for transactions by electronic payments and payment cards are carried out via the Paylane.pl service. Electronic payments and payment cards are managed by PayLane sp. Z o.o. with headquarters in Gdańsk at ul. Arkońska 6 / A3, postal code: 80-387, National Court Register Number: 0000227278.
If the Restaurateur fails to pay the Subscription, the Operator may terminate the Agreement with immediate effect and block the Restaurateur Account.
AppStore and Google Play are mutually exclusive, which means that a purchase made on one source can not be realized or transferred to a device supported by another operating system.
The Operator reserves the right to temporarily cease or limit the Services provided to carry out the necessary maintenance work.
The Operator reserves the right to permanently discontinue the Services by applying the monthly notice period.
The Operator reserves the right to change these Regulations in case of significant reasons according to the Operator, in particular the need to adapt the regulations to the law, clarify the conditions, and change the internal policy. If the changes are not accepted, the User or Restaurateur is obliged to cease using the Mobile Application and the Services provided.
The law applicable to the contract between the User and the Operator is Polish law.
All disputes arising from the Agreement will be resolved by the competent common courts.
In the case of disputes arising from the Agreement regarding a civil matter case between entrepreneurs in the scope of their business activity, even if any of the parties have ceased to conduct business, the competent court will be the competent court for the seat of the Operator.
The mobile application and all materials and information contained therein presented as part of the Content Application, as well as logos, graphic elements and trademarks – except for the Users’ opinions – are the sole property of the Operator or Restoration and are protected by law.
The Regulations are available directly in the Mobile Application as well as on the Operator’s website.
In matters not covered by these Regulations, the relevant provisions of Polish law shall apply, in particular the Civil Code, the Act of 18 July 2002 on the provision of electronic services and the Act of 30 May 2014 on Consumer Rights.
The personal data necessary for the implementation of the Agreement is for the User: nickname and e-mail address, in the case of the Restaurateur: the name of the restaurant, e-mail address, address of the activity, contact telephone number.
Optionally, the User may indicate to the Administrator personal data regarding preferences regarding dishes, kitchen type, price range and GPS locations.
Providing data indicated as necessary to perform the contract is necessary for the conclusion and implementation of the Agreement. Providing optional data is completely allowed. However, it limits the functionality of the Mobile Application and makes it impossible to implement some of its functionality.
Regarding the processing of personal data by the Administrator, the User and the Restaurateur have the right to request access to the content of their data – within the limits of art. 15 RODO, regarding their rectification – within the limits of art. 16 RODO, regarding their removal – within the limits of art. 17 RODO, regarding processing restrictions – within the limits of art. 18 RODO, regarding data transfer – within the limits of art. 20 of the RODO, objecting to the processing of personal data – within the limits of art. 21 RODO. You also have the right to lodge a complaint with the supervisory authority when the processing of personal data by the Administrator violates the rules of the RODO.
Transaction data, including personal data, may be transferred to PayLane Sp. z o.o. with headquarters in Gdańsk at ul. Arkońska 6 / A3, postal code: 80-387, National Court Register Number: 0000227278. to the extent necessary to handle payment for the order.
Implementation of your rights may take place by sending a request to the Administrator’s e-mail address.
The given administrative data may be made available to the necessary extent to the Restorers and other Users as well as the Operator’s IT services.
Personal data will be kept for the duration of the Agreement, and after that time may be stored until the time of possible claims.

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Premises Pointers - Volume II, No. 11 | Hurwitz & Fine, P.C.
As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
Here is a story that caught my eye--a recently filed lawsuit in Texas against Olive Garden because the mushrooms were too hot. The plaintiff, who seeks monetary damages between $200,000 - $1,000,000, claims she had a near death experience as a result of biting into a hot stuffed mushroom. The complaint alleges the mushroom was defective and unsafe for its intended purpose. The plaintiff further claims that Olive Garden failed to warn guests the mushrooms were “extremely hot.” According to the complaint, the mushroom became lodged in her throat allegedly causing burns and serious injuries. Since the case was just filed in March, I will have to report back on the outcome. I would suspect there will be a few affirmative defenses to be raised by Olive Garden (well maybe more than a few).
On another note, I attended my first FDCC conference in Austin, Texas last month. For those who don’t know, the Federation of Defense & Corporate Counsel (FDCC) is an international organization composed of recognized attorneys in the legal community and is dedicated to promoting knowledge, fellowship, and professionalism of its members as they pursue the course of a balanced justice system and represent those in need of a defense in civil lawsuits. I can report the meeting did not disappointment! It was a fabulous event.
As always, please feel free to share this newsletter with friends and colleagues. If you are interested in being added to our subscription list, e-mail me at [email protected]. And if would like to be added to Coverage Pointers, e-mail Dan Kohane at [email protected] and/or Labor Law Pointers, e-mail David Adams at [email protected]. We look forward to hearing from you!
3/15/19 Del Rosario v. Liverpool Lodging, LLC.
Summary judgment granted by trial court but reversed on appeal by the Fourth Department even though plaintiff unable to pinpoint cause of fall – compare to Bilska from the Second Department below.
The Plaintiff allegedly fell while stepping out of a bath tub at defendants’ hotel. Defendants' motion for summary judgment was granted on the grounds that the cause of plaintiff's fall was based on mere speculation. In support of their motion, defendants submitted plaintiff's deposition testimony, which according to the Appellate Court, established that plaintiff believed that the alleged dangerous or defective configuration or installation of the tub caused her to fall and sustain injuries. It’s not clear to me how that proves anything. It certainly appears be completely speculative. Nevertheless, the Court felt defendants failed to establish the absence of a dangerous or defective condition and therefore reversed the trial court on all issues but plaintiff’s failure to warn claim because defendants demonstrated the condition at issue was open and obvious.
3/28/19 Dardha v. Costco Wholesale Corp.
Defendant’s motion for reconsideration in slip and fall case at Costco was denied by the District Court.
Plaintiff allegedly slipped and fell at a Costco location. The defendant moved for summary judgment, but the motion was denied. Following the denial of the motion, defendant made a motion for reconsideration, which the Court pointed out is “an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” In order to have a fighting chance on reconsideration, the moving part must be able to point to controlling decisions or data that the court overlooked and that would alter the conclusion previously reached. A motion for reconsideration is not a vehicle for presenting new theories or for repeating old arguments. Despite the established framework for reconsideration, defendant essentially repeated the arguments previously advance on summary judgment. For instance, defendant claimed it was undisputed that the liquid on the floor was there for fewer than eighty-three seconds and therefore defendant did not have a reasonable opportunity to remedy the spill. In denying the motion, the court points out that plaintiff disputes that the spill was on the floor for eighty-three seconds and that an employee arguably was aware of the spill thus constituting actual notice of the condition. Based on this, the court went on to state that the issue of constructive notice was not relevant because the motion was properly denied based on questions of fact regarding actual notice.
3/20/19 Reardon v. Macy’s Inc.
Retail defendants’ motion to change venue was denied – practice point: read and be familiar with CPLR sections on venue and follow requirements closely!
The plaintiff was injured on a sidewalk when she was allegedly knocked to the ground after being struck from behind by employees of Macy's, Inc., who were in pursuit of a suspected shoplifter. Venue was based upon the residence of the defendant Mirela Gjonbalaj in Kings County. The other defendants answered the complaint and served a demand upon the plaintiff on or about November 3, 2017 to change venue to New York County from Kings County pursuant to CPLR 511[a] and [b], and on or about November 9, 2017, moved in the Supreme Court, Kings County, to change venue. The defendants contended that venue was improper in Kings County and, thus, they were entitled to change venue as of right or, alternatively, that a change of venue to New York County was appropriate for the convenience of material witnesses. The plaintiff opposed the defendants' motion and cross-moved to retain venue in Kings County. The court denied the defendants' motion and granted the plaintiff's cross motion. The defendants appealed.
A key thing to remember is that a demand to change venue based on the designation of an improper county shall be served with the answer or before the answer is served - see CPLR 511[a]. Since the defendants did not serve their demand for a change of venue until after they served their answer, they were not entitled to change venue as of right. Therefore, their motion could only be based on CPLR 510(3), which provides that, upon motion, the court may change venue of an action where “the convenience of material witnesses and the ends of justice will be promoted by the change.” A party moving to change venue pursuant to CPLR 510(3) must provide information about the prospective witnesses, including, but not limited to, their names and addresses; disclose the facts about which the proposed witnesses will testify at the trial; represent that the prospective witnesses are willing to testify; and state that the witnesses would be inconvenienced if the venue is not changed. It was determined by the court here that the court property exercised its discretion in denying the defendants' motion to change venue from Kings County to New York County and in granting the plaintiff's cross motion. The court cited to the fact the defendants failed to identify a single prospective witness who would be inconvenienced by the venue remaining in Kings County.
Landlord wins summary judgment on all fronts – gets plaintiff’s complaint dismissed because plaintiff is unable to identify what actually caused her to fall and also wins summary judgment against third-party defendant for contractual indemnification.
The plaintiff allegedly slipped and fell on water while working in the kitchen of a restaurant owned by the third-party defendant employer. The plaintiff commenced suit against the owner of the premises where the restaurant was located (the landlord) and the landlord commenced a third-party action for contractual indemnification against the employer. The landlord moved for summary judgment dismissing the complaint and the employer moved for summary judgment dismissing the third-party complaint, and the landlord cross-moved for summary judgment on her third-party cause of action for contractual indemnification. The Supreme Court denied all motions. The Appellate Division determined the landlord met her burden on her motion for summary judgment dismissing the complaint by submitting the plaintiff's deposition transcript, which demonstrated the plaintiff was unable to identify the cause of her fall without resorting to speculation. The plaintiff's theory that she slipped on water dripping from the ceiling was speculative in light of her deposition testimony that she “personally didn't see any water dripping, but there must have been a drip from the ceiling because the ground was wet.” Further, the landlord was entitled to summary judgment on her third-party cause of action for contractual indemnification. The lease rider provided that Bowian was obligated to indemnify the landlord “against any liability, claim, or payment on account of or arising from the Tenant's possession, use or occupation of the premises,” and required Bowian to obtain general liability insurance for the mutual benefit of both parties, naming the landlord as an insured. The landlord established that the accident fell within the scope of the indemnification agreement.
Child #2 is a junior in high school and next couple of weeks will see his first college visits. South to the University of Pittsburgh this week and a mid-west Jesuit tour next week – Loyola Chicago, Marquette and Xavier. The most important parental lesson from Child #1’s (now in the last weeks of her first year at Villanova) college search was stepping into the background and watching her during campus visits to identify the type of school (or at least characteristics) that resonated with her and then gently steering the search toward those types of schools. We’ll see what that brings us this time around.
On the musical front, the last month or two has brought new releases from two of Toronto’s most fun young bands – PUP (Morbid Stuff) and Pkew Pkew Pkew (Optimal Lifestyles). Neither record solves any world problems, but I dare you to not turn up the volume and sing along should you find yourself alone in the car with either band. And why wouldn’t you – both bands serve up short, tight and often irreverent songs about everyday victories and annoyances. The best review of the Pkew Pkew Pkew record I read described it as “full of anthemic fist-pumpers about things you probably shouldn’t be pumping your fist about” and containing “chord progressions straight from old early Clash and Pogues records, the occasional 50s-style guitar solo and big choruses.” Craig Finn, front man for the Hold Steady and a master songwriter adept at capturing small details about everyday things, worked with the band on the record and his influence shows.
The cases covered this month look at the dismissal of claims against a school district that were included in the complaint but not the underlying notice of claim (Meyer); the bounds of a school’s district’s care and custody of, and therefore duty to a student (Williams); an application to stay a civil suit until a related criminal case is resolved (Miller); a motion to dismiss because plaintiff had not appeared for a General Municipal Law §50-h hearing before commencing her suit (Rabaia); and whether calls to city’s complaint line can fulfill a prior written notice requirement (Hued and Harvey).
Thanks for reading. Please send along any comments, questions, critiques, faint praise and melodious recommendations. If there is a topic you would like us to comment on, just let us know.
March 27, 2019 Meyer v. Magalios, et al.
The lack of notice of any prior problems between students involved in fight and the spontaneous nature of incident supported dismissal of the plaintiff’s claim of negligent supervision by school district. Plaintiff’s remaining claims were dismissed because they were not contained in the Notice of Claim served upon the district.
Plaintiff high school student sought recovery for injuries allegedly sustained in a fight occurring in a school bathroom between classes. The fight occurred when the 11th grade plaintiff called another student “fat” while passing him in a school lavatory between classes, a slur that led to a 20-30 second melee during which plaintiff was allegedly injured. When the skirmish occurred, the closest faculty member was in the nearby hallway.
Because the district (1) had no prior notice of any issues, conflicts or prior incidents involving either student, and (2) the incident was so spontaneous that no reasonable amount of supervision could have prevented the incident, the court granted the district’s motion to dismiss plaintiff’s negligent supervision claims. The plaintiff’s remaining claims (including claims that the District had interfered or allowed interference with plaintiff’s rights by failing to take action against the other student) were also dismissed, without any examination of their relative merits. Plaintiff had not included these claims in their Notice of Claim, precluding any recovery on those claims in the personal injury suit.
The practice point here may be obvious, but is worth repeating – comparing both the complaint and bill of particulars against the previously served Notice of Claim is crucial.
March 20, 2019 Williams v. Student Bus Company, et al.
Special education program that did not provide for student transportation was not liable for injuries to student sustained on school bus while riding home from school.
Infant plaintiff was enrolled in a program presented by a countywide BOCES program, held at a central location. BOCES had no responsibility for transporting any of the students attending its programs – that obligation lay with a participating student’s home district. In this case, the plaintiff’s home district contracted with codefendant Student Bus Company, a private busing company, to transport its students to and from the BOCES programs.
Plaintiff‘s parents brought this action, alleging negligent supervision, to recover for injuries sustained by their son at the hands of a fellow student. The incident occurred when both students were on a Student Bus Company bus on the way home from the BOCES program. After discovery, BOCES, the school district and the transportation company all moved for summary judgment. Questions of fact led to the denial of the district and bus company’s motions. BOCES’ motion was granted, since its duty to supervise was tied to the student being within its “physical custody or orbit of authority.” Since it was not responsible for providing and had no involvement with the infant plaintiff’s transportation to and from its program, BOCES’ custody and control of the infant plaintiff had ended when he boarded the Student Bus Company bus for his ride home.
April 11, 2019 Miller v. New York City Housing Authority, et al.
Defendant property owner not entitled to stay of civil suit pending the resolution of a criminal prosecution arising from the underlying event.
Tenant sued the defendant Housing Authority for injuries sustained when assaulted in her apartment by an intruder who had allegedly gained access to her building through a broken lock. Plaintiff alleged the Authority had notice of the broken lock and was negligent for failing to correct the situation, thereby allowing the assault to occur. The Housing Authority sought a stay of the plaintiff’s suit because the criminal prosecution against the intruder was ongoing, and as a result, police and other investigative records remained under seal and unavailable to the Housing Authority. The court found the negligence claims against the Housing Authority (based upon the alleged notice of the condition) were wholly distinct from criminal charges lodged against the assailant.
I currently have several cases on my desk where a police department has cited an ongoing criminal investigation or prosecution as the basis for not providing us with their full report, including witness statements, photographs, physical evidence. In a couple of auto cases, we have successfully gained access/permission (usually through an Order to Show Cause) to at least visually inspect and photograph the impounded vehicles. Stressing that your inspection will be visual only (i.e. non-destructive) is important. If the issue is whether something has been preserved or a certain test done, politely asking to verify that was done may be the best you can do. If your client is the one facing the criminal charges, his or her criminal defense lawyer likely has access to the investigation materials and may, depending on the circumstances and materials, be willing to share the information or materials.
March 20, 2019 Riabaia v. New York City Health and Hospitals Corp., et al.
Municipal defendant’s motion to dismiss denied because plaintiff had reasonable explanation for her failure to appear for a hearing noticed pursuant to General Municipal Law §50-h.
Plaintiff, then in her late 80s, fell while a patient at the defendant’s Coney Island Hospital. Within several weeks of her fall, she filed a Notice of Claim, followed shortly thereafter by the defendant’s service of a notice to appear for a hearing to be conducted pursuant to General Municipal Law §50-h. That hearing was then adjourned several times. Ten months after the fall, and without the §50-h hearing having been conducted, plaintiff commenced her lawsuit.
The defendant hospital moved to dismiss, citing to General Municipal Law §50-h(5) and the undisputed fact that plaintiff had not testified at a §50-h hearing. §50-h(5) makes appearing at a duly noticed §50-h hearing a jurisdictional predicate to commencing an action. General Municipal Law §50-e sets forth similar requirements that must be complied with prior to commencing an action against a municipal entity. The issue for the court was whether plaintiff had a reasonable or justifiable excuse for her failure to testify at a §50-h hearing. Here the court found that plaintiff’s failure to appear was directly related to her medical and mental conditions, documented to the court through the submission of a statement from her doctors. The decision does not offer an explanation as to why plaintiff commenced the action when she did – there remained several months before the statute of limitations ran, meaning there was time to conduct the §50-h hearing and avoid the circumstances that led to the defense motion discussed here.
March 26, 2019 Hued v. City of New York, et al.
April 11, 29019 Harvey v. Henry 85 LLC, et al.
Both of these cases arise from slip and fall accidents occurring on City of New York owned property subject to prior written notice requirements. In Hued, plaintiff was injured because an allegedly defective or damaged catch basin (part of a drainage system). In Harvey, plaintiff claimed to have fallen on an allegedly dangerous handicapped pedestrian ramp. In both cases, the City moved for summary judgment, establishing that it had checked its records and found no written notice of the condition complained of in each suit.
In response, both plaintiffs pointed to calls made to the City’s 311 complaint line about conditions at each location. Case law is clear that calls, by themselves, to a complaint line will not satisfy prior written notice requirements. In certain circumstances, documents generated by a municipal entity regarding the issue (usually generated in response to a complaint) can be considered a “written acknowledgement” of the issue and can a prior written notice requirement. That written acknowledgement must be specific to the condition underlying the subsequent personal injury action.
In Hued, the work order created in response to the 311 line complaint line was not a written acknowledgement because it pertained to a supposed problem at the opposite side of the area where the catch basis was located. In Harvey, 6 years prior to the complaint line call, the City had cited the owner of the adjacent property for missing tiles on or about the handicapped ramp. Because that citation was still open when the complaint call was received, no follow up investigation or site inspection was conducted. In any event, the earlier citation did not constitute written acknowledgement by the City of the condition claimed by the plaintiff to have caused her fall – plaintiff testified that there were no missing tiles on the ramp both prior to and on the date she fell.
April’s here and almost time for Spring Break. I hear they have closed Miami Beach and Panama City from spring break revelry, so the Potenza clan will be road-tripping Griswald style down to Charleston and Hilton Head, SC, with a pit-stop in Washington, D.C. where my kids will meet their new cousin, who hopefully is nothing like Cousin Eddie.
There are some interesting asbestos decisions this past month. The First Department held that a plaintiff’s testimony that he worked with defendant’s product “a lot” was insufficient foundation for expert’s causation opinion. The First Department also addressed the assessment of liability against plaintiff’s employer as a non-party. And sadly, the Third Department reversed a rare upstate New York defense verdict on an evidentiary issue.
Why shouldn’t you tell an Easter egg a bad joke?
“A lot” of asbestos insufficient to establish causation.
The First Department reversed a nearly $1.8 million lung cancer verdict against the trial defendant Caterpillar, finding that there was insufficient foundation for plaintiff’s expert’s opinion on causation. Plaintiff alleged that he was exposed to asbestos as result of his work changing brakes, clutches, and gaskets on manufacturer's forklifts. The Court ruled that the plaintiff failed to establish some scientific basis for a finding of causation attributable to manufacturer's product as he testified that he worked on manufacturer's forklifts “a lot,” but provided no context for deciphering the meaning of “a lot,” he did not offer any other basis for determining frequency of his exposure to asbestos through his work on manufacturer's forklifts, and thus plaintiff’s experts had insufficient foundation for their medical opinions that his work with manufacturer's forklifts was substantial cause of his lung cancer.
3/28/19 Brown v. Bell & Gossett, et al.
First Department addresses how to assess liability against an entity that was both plaintiff’s employer and a contractor at plaintiff’s worksite.
Following a verdict for plaintiff, the sole issue on this appeal was the attribution of liability as between trial defendant Consolidated Edison and nonparty Robert A. Keasbey, Co. (Keasbey). For a period of time, plaintiff had worked at sites where Keasbey workers used asbestos containing concrete materials. Plaintiff then worked directly for Keasbey at the Con Ed site. The jury apportioned liability 30% to Con Ed and 35% to non-party Keasbey.
Plaintiff submitted to the trial court a proposed judgment apportioning to Con Ed 65% of the net verdict, combining the 30% to Con Ed and the 35% to Keasbey, pursuant to CPLR 1602, because Keasbey was Brown's employer and therefore could not be sued directly by plaintiff, while Con Ed could proceed against Keasbey for indemnification or contribution, as Brown had suffered a “grave injury” under Workers' Compensation Law § 11. Con Ed proposed a judgment in which it was apportioned liability in the percentage the jury found, on the ground that its apportioned share was less than 50%, pursuant to CPLR 1601. The trial court adopted Con Ed's proposed judgment and the First Department reversed, finding that plaintiff established prima facie that CPLR 1602(4) applied, as Keasbey was Brown's employer and Brown suffered a grave injury. To the extent that the verdict is unclear as to whether the jury apportioned liability to Keasbey to any degree in its role as manufacturer, Con Ed, as the proponent of the theory that it could limit that portion of Keasbey's liability for which it was jointly and severally liable, failed to meet its burden to object to the verdict sheet and charges and to propose an appropriate and clarifying question.
3/21/19 Billok v. Union Carbide, et al.
Court orders new trial over admissibility of prior deposition of corporate witness.
Defendant Georgia-Pacific earned a rare defense verdict in an upstate New York (Saratoga County) asbestos trial, which hinged on whether plaintiff correctly identified the defendant’s product. The Third Department ordered a new trial, finding that the defendant should not have been permitted to introduce testimony from a corporate witness in a prior action since plaintiff was not a party to that prior action and had no opportunity to cross-examine this witness.
Spring has sprung! Well, sort of—it seems that we are in a two steps forward, one step backward holding pattern with Mother Nature these last few weeks as we alternate between 60 degree days and snow. If you are anything like me, you are using the long trudge into the summer as motivation to plan a vacation this summer—that’s why this month’s column is all about Airbnb.
WHO BEARS THE LIABILITY WHEN AN INJURY OCCURS AT AN AIRBNB?
If you are an Airbnb host, you, individually, can be held liable for an injury occurring at your property, regardless of your ownership status. In other words, whether you are an owner of the premises, or a tenant “subletting” a room in your apartment (or leasing your apartment through Airbnb while you are away), you can still be considered responsible for injuries occurring during a guest’s stay. Indeed, even a landlord or a homeowner’s association may be on the hook where its tenant leases out the premises, or a portion of the premises, through Airbnb. Airbnb itself may be the target of a lawsuit where the injuries at-issue are alleged to stem from a sexual assault, crime, or the gross negligence of an Airbnb host on the grounds that Airbnb negligently allowed the host to utilize its platform.
Over the last few years, there’s been a lot of media reporting about injuries at Airbnb accommodations resulting in lawsuits. In 2015, a mother brought a lawsuit directly against Airbnb after her son was illegally confined and sexually assaulted by a host in Madrid; in 2017, a San Francisco woman sued Airbnb after one of its “Super Hosts” sexually assaulted her at a Los Angeles property; and in 2018, the family of a Florida woman sued both Airbnb and the owner of a Costa Rican apartment complex after a security guard working for the property owner murdered the decedent.
HOW WILL AIRBNB’S TERMS OF SERVICE AFFECT A PERSONAL INJURY LAWSUIT AGAINST A HOST OR PROPERTY OWNER?
As one would expect, Airbnb’s terms of service includes an indemnification provision insulating itself from the bad acts of hosts as well as a provision outlining the company’s position that both hosts and guests assume the risk of using the platform.
The terms also bind guests and hosts to arbitration. Specifically, members who raise claims for personal injury arising in the United States, or who file claims within the U.S., must abide by a two part Dispute Resolution and Arbitration Agreement that provides “(1) an informal negotiation directly with Airbnb’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association”. Narrow exceptions are made for alleged copyright/trademark/patent or intellectual property rights cases as well as claims seeking emergency injunctive relief based upon exigent circumstances (such as imminent danger, commission of a crime, etc.). Where a claim falls within these narrow exceptions to the Arbitration provision, the terms of service also include provisions that a person’s use of the site waives any right to a jury trial and, further, assigns the Courts of San Francisco, California as the proper venue and forum.
Interestingly, all of Airbnb’s hosts, worldwide, are covered by the Company’s Host Protection Insurance. HPI provides primary coverage for hosts, landlords, and homeowner’s associations for claims of personal injury and/or property damage of up to $1 million per occurrence. The claim must arise out of an Airbnb listing, at an Airbnb property, or occur during a guest’s stay; coverage does not extend to property damage caused by environmental conditions (such as pollution or mold), intentional torts, and/or loss of earnings.
Although April showers are here in Buffalo, I miss March Madness and definitely did not want that National Championship game to end…what a phenomenal way to conclude another awesome season! But with NBA playoff games every night for the foreseeable future, basketball is not over yet and like you, I too am wondering if 2019 is the year that Brian Barnas’ Toronto Raptors will meet the Warriors in the finals or whether we will be pleasantly surprised by another team from the Eastern Conference.
This month’s issue is full of discovery cases involving CPLR § 3126 motions for spoliation sanctions with a variety of repercussions for those who choose to ignore court-ordered discovery deadlines or respond inadequately. I also discuss the Bilska case, which highlights when a defendant is entitled to summary judgment dismissing a premises liability claim when the evidence demonstrates that plaintiff cannot identify the cause of his or her fall. Send me an email if you have any questions, or if you need a refresher for dealing with contractual indemnity issues and/or General Obligations Law § 5-321.
04/03/19 Torres v Dayton Hudson Corp.
Plaintiff’s failure to comply with the conditional order of preclusion results in dismissal of complaint.
Pursuant to a conditional order of preclusion, plaintiff was required to provide outstanding discovery to defendants, including the specific location of plaintiff’s fall on their sidewalk, driveway, or parking lot, and was also to appear for a deposition on a date certain. After plaintiff failed to comply with the conditional order, the trial court granted defendants’ CPLR § 3126 motion to dismiss as the discovery responses plaintiff provided were incomplete and inadequate and plaintiff’s failure to explain his noncompliance demonstrated that such noncompliance was willful. Thus, the trial court found the conditional order of preclusion had become absolute and plaintiff was precluded from offering any evidence or testimony at trial to support his claims against defendant.
It is well-settled that “a conditional order of preclusion requires a party to provide certain discovery by a certain date, or face the sanctions specific in the order”, and that if a party fails to produce the requested discovery by the specific date, the conditional order becomes absolute. Here, the Second Department affirmed; finding plaintiff failed to provide all required discovery as stated in the conditional order and neither offered any excuse for this failure nor demonstrated that he had a meritorious cause of action.
04/10/19 Broccoli v Kohl’s Dept. Stores, Inc.
Plaintiff’s repeated failures, without an adequate excuse, to respond to discovery demands and to comply with the trial court’s orders to provide the outstanding authorizations warrants dismissal of her claims.
Plaintiff allegedly was injured while shopping at Kohl’s, when she was assaulted by a security guard. The trial court granted Kohl’s motion to strike the complaint due to plaintiff’s failure to provide court-ordered discovery. Upon granting plaintiff’s motion for renewal and reargument, the trial court adhered to its prior determination.
Under CPLR § 3126, the trial court has the discretion to strike a pleading of a party who refuses to comply with court-ordered discovery, where that party’s conduct was the result of “willful and contumacious” conduct. In this case, the Second Department affirmed the striking of plaintiff’s complaint; finding that plaintiff’s conduct was willful and contumacious since it could properly be inferred from her repeated failures, without an adequate excuse, to respond to discovery demands and to comply with the trial court’s orders to provide the outstanding authorizations.
Plaintiff’s CPLR § 3126 motion for spoliation sanctions denied because he did not establish that defendant failed to preserve all of the surveillance video footage taken on the date of the subject incident after defendant was placed on notice that the evidence might be needed for future litigation.
Plaintiff allegedly was injured when he slipped and fell on a patch of ice as he was exiting defendant’s building after making a delivery to a resident. A few days later, plaintiff’s employer contacted defendant’s property manager and requested a copy of any video surveillance footage depicting the incident, and thereafter responded to the request with a two-minute clip of the footage showing the fall.
In response to plaintiff’s motion to compel seeking the all of the video footage taken that day or to preclude defendant from introducing evidence at trial of any destroyed footage or to direct that a negative inference charge be given against defendant on spoliation grounds at trial, defendant submitted its property manager’s affidavit stating that he only had a two-minute clip which he previously emailed to plaintiff’s employer and the remaining footage was automatically deleted 30 days after the incident.
The trial court granted plaintiff’s motion to impose sanctions to the extent of precluding defendant from offering the footage into evidence at trial and providing for an adverse inference charge at trial. However, the Second Department reversed; finding plaintiff did not demonstrate that defendant’s failure to preserve all of the video surveillance footage fatally compromised his ability to prove his claim such that plaintiff’s motion to impose sanctions on defendant should have been denied.
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George C. Pontikes, Chicago, Ill., for petitioner.
Francis X. Beytagh, Asst. Sol. Gen., for respondent.
Petitioner was indicted for willfully and knowingly failing to report for and submit to induction into the Armed Forces of the United States.1 At trial, petitioner's only defense was that he should have been exempt from military service because he was the 'sole surviving son' of a family whose father had been killed in action while serving in the Armed Forces of the United States.2 The District Court held that he could not raise that defense because he had failed to exhaust the administrative remedies provided by the Selective Service System. Accordingly, petitioner was convicted and sentenced to three years' imprisonment. The Court of Appeals affirmed, with one judge dissenting. United States v. McKart, 395 F.2d 906 (C.A.6th Cir. 1968). We granted certiorari. 393 U.S. 922, 89 S.Ct. 256, 21 L.Ed.2d 258 (1968).
On March 2, 1964, he was ordered to report for a pre-induction physical, but failed to do so. He was declared a delinquent and ordered to report for induction on May 11, 1964. He failed to report, but instead wrote a letter to his local board indicating that his moral beliefs prevented him from cooperating with the Selective Service System. The local board replied by sending petitioner the form for claiming conscientious objector status. The board also referred to petitioner's indication in his original questionnaire that he was a sole surviving son and requested further information on that subject.
On May 20, 1964, petitioner returned the blank form, stating that he did not wish to be a conscientious objector. In response to the board's request for information about his claim to be a sole surviving son, petitioner indicated that his father had been killed in World War II. The local board, after consulting the State Director, again wrote petitioner requesting more information about his father. Petitioner supplied some of the information. The local board forwarded this information to the State Director, who requested the local board to reopen petitioner's classification.4 The board canceled his induction order and reclassified him IV—A, the appropriate classification for a registrant exempted as a sole surviving son. Petitioner remained in that classification until February 14, 1966.
'(W)here the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces * * * the sole surviving son of such family shall not be inducted for service * * *.' 50 U.S.C. App. § 456(o).
There is no question that petitioner was entitled to an exemption before the death of his mother. The issue is whether her death, and the end of the immediate 'family unit,' ended that exemption.
We have found no cases discussing this aspect of § 6(o).6 The applicable Selective Service System Regulation, 32 CFR § 1622.40(a)(10) (1969), merely repeats the language of the statute. The System's administrative interpretations have not been uniform,7 although i the present case the National Director took the position that 'inasmuch as there is no family, it is not believed that (petitioner) would qualify for sole surviving son status.' We must, therefore, decide what is essentially a question of first impression. Our examination of the language and legislative history of § 6(o) indicates that the Selective Service System's interpretation fails to effectuate fully the purposes Congress had in mind in providing the exemption.
The argument for conditioning the exemption upon the continued existence of a family unit is based not upon the language or structure of the statute but upon certain references in the legislative history. These comments indicate that one purpose of the exemption was to provide 'solace and consolation' to the remaining family members by guaranteeing the presence of the sole surviving son. See S.Rep.No.1119, 88th Cong., 2d Sess., 3 (1964); Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H.R. 2664, 88th Cong., 1st Sess., 3442—3443 (1963), U.S.Code Cong. & Adm.News, p. 2539. When there is no one left to comfort, it is argued, the sole surviving son may be drafted. However, our examination of the sparse legislative history discloses that Congress had not one but several purposes in mind in providing the exemption, only some of which depend upon the existence of a family unit.
Perhaps chief among these other purposes was a desire to avoid extinguishing the male line of a family through the death in action of the only surviving son. See S.Rep.No. 1119, supra; Hearing before the Senate Committee on Armed Services on H.R. 2664, 88th Cong., 1st Sess., 30—31 (1963); 110 Cong.Rec. 15218 (1964) (remarks of Senator Keating). Other purposes mentioned were providing financial support for the remaining family members, fairness to the registrant who has lost his father in the service of his country, and the feeling that there is, under normal circumstances, a limit to the sacrifice that one family must make in the service of the country. See Hearing before the Senate Committee on Armed Services on H.R. 2664, supra, at 30—31; Hearings before Subcommittee No. 1 of the House Committee on Armed Services on H.R. 2664, supra, at 3442—3443; 109 Cong.Rec. 24889 (1963).
Perhaps the most that can be said in these circumstances is that Congress had multiple purposes in mind in providing an exemption for a sole surviving son. Depriving petitioner of an exemption might not frustrate one of these purposes, but it certainly would frustrate several of the others. Therefore, given the beneficent basis for § 6(o), we cannot believe that Congress intended to make one factor, the existence of a 'family unit,' crucial. Accordingly, the death of petitioner's mother did not operate to deprive him of his right to be exempt from military service. The local board erred in classifying petitioner I—A and ordering him to report for induction.
The Government maintains, however, that petitioner cannot raise the invalidity of his I—A classification and subsequent induction order as a defense to a criminal prosecution for refusal to report for induction. According to the Government, petitioner's failure to appeal his reclassification after the death of his mother constitutes a failure to exhaust available administrative remedies and therefore should bar all judicial review. For the reasons set out below, we cannot agree.
The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action 424—458 (1965). The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.9 Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.
Perhaps the most common application of the exhaustion doctrine is in cases where the relevant statute provides that certain administrative procedures shall be exclusive. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938) (National Labor Relations Act). The reasons for making such procedures exclusive, and for the judicial application of the exhaustion doctrine in cases where the statutory requirement of exclusivity is not so explicit, are not difficult to understand. A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.
Closely related to the above reasons is a notion peculiar to administrative law. The administrative agency is created as a separate entity and invested with certain powers and duties. The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction. As Professor Jaffe puts it, '(t)he exhaustion doctrine is, therefore, an expression of executive and administrative autonomy.'10 This reason is particularly pertinent where the function of the agency and the particular decision sog ht to be reviewed involve exercise of discretionary powers granted the agency by Congress, or require application of special expertise.
Some of these reasons apply equally to cases like the present one, where the administrative process is at an end and a party seeks judicial review of a decision that was not appealed through the administrative process. Particularly, judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion or apply its expertise. In addition, other justifications for requiring exhaustion in cases of this sort have nothing to do with the dangers of interruption of the administrative process. Certain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.
In Selective Service cases, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system Congress has created. At the heart of the Selective Service System are the local boards, which are charged in the first instance with registering and classifying those subject to the Selective Service laws. 32 CFR § 1613.1 et seq., §§ 1621.1—1623.10 (1969). Upon being classified by the local board, the registrant has a right of appeal to a state appeal board, 32 CFR § 1626.2 (1969), and, in some instances, to the President, 32 CFR § 1627.3 (1969). No registrant is required to appeal.11 A registrant cannot be ordered to report for induction while his classification is being considered by the local board or by an appeal board. 32 CFR §§ 1624.3, 1625.14, 1626.41, 1627.8 (1969).
At some stage during this process, normally shortly before he is expected to be ordered to report for induction, see 32 CFR § 1628.11 (1969), the registrant is required to complete a pre-induction physical examination. If he passes this examination, he ordinarily will be ordered to report for induction. The next, and last, step is to report to the induction center and submit to induction. At this point, the administrative process is at an end.
This case raises a different question. We are not here faced with a premature resort to the courts—all administrative remedies are now closed to petitioner. We are asked instead to hold that petitioner's failure to utilize a particular administrative process—an appeal—bars him from defending a criminal prosecution on grounds which could have been raised on that appeal. We cannot agree that application of the exhaustion doctrine would be proper in the circumstances of the present case.
First of all, it is well to remember that use of the exhaustion doctrine in criminal cases can be exceedingly harsh. The defendant is often stripped of his only defense; he must go to jail without having any judicial review of an assertedly invalid order. The deprivation of judicial review occurs not when the affected person is affirmatively asking for assistance from the courts but when the Government is attempting to impose criminal sanctions on him. Such a result should not be tolerated unless the interests underlying the exhaustion rule clearly outweigh the severe burden imposed upon the registrant if he is denied judicial review.13 The statute as it stood when petitioner was reclassified said nothing which would require registrants to raise all their claims before the appeal boards.14 We must ask, then, whether there is in this case a governmental interest compelling enough to outweigh the severe burden placed on petitioner. Even if there is no such compelling interest when petitioner's case is viewed in isolation, we must also ask whether allowing all similarly situated registrants to bypass administrative appeal procedures would seriously impair the Selective Service System's ability to perform its functions.
We do not, however, take such a dire view of the likely consequences of today's decision. At the outset, we doubt whether many registrants will be foolhardy enough to deny the Selective Service System the opportunity t correct its own errors by taking their chances with a criminal prosecution and a possibility of five years in jail. The very presence of the criminal sanction is sufficient to ensure that the great majority of registrants will exhaust all administrative remedies before deciding whether or not to continue the challenge to their classifications. And, today's holding does not apply to every registrant who fails to take advantage of the administrative remedies provided by the Selective Service System. For, as we have said, many classifications require exercise of discretion or application of expertise; in these cases, it may be proper to require a registrant to carry his case through the administrative process before he comes into court. Moreover, we are not convinced that many in this rather small class of registrants will bypass the Selective Service System with the thought that their ultimate chances of success in the courts are enhanced thereby. In short, we simply do not think that the exhaustion doctrine contributes significantly to the fairly low number of registrants who decide to subject themselves to criminal prosecution for failure to submit to induction. Accordingly, in the present case, where there appears no significant interest to be served in having the System decide the issue before it reaches the courts, we do not believe that petitioner's failure to appeal his classification should foreclose all judicial review.
Finally, we are faced with the argument that petitioner's challenge to the validity of his classification is barred by his failure to report for and pass his preinduction physical, thus giving the System one last chance to reject him. The Government points to the fact that large numbers of registrants are rejected for physical and mental reasons, and asserts that many criminal trials would be rendered unnecessary if registrants were required to report for a physical before being allowed to challenge their classifications.
We think there are several answers to his argument. First, as we said above, we doubt very much whether very many registrants would pass up the chance to escape service by reason of physical or mental defects and leap immediately at the chance to defend a criminal prosecution. But more importantly, a registrant is under a duty to comply with the order to report for a physical examination21 and may be criminally prosecuted for failure to comply.22 If the Government deems it important enough to the smooth functioning of the System to have unfit registrants weeded out at the earliest possible moment, it can enforce the duty to report for pre-induction examinations by criminal sanctions. In the present case, it has not chosen to do so. Petitioner has not been prosecuted for failure to report for his examination; he has been prosecuted for failure to report for induction, a duty he claims he did not have. Therefore, we hold that petitioner's failure to report for his examination should not bar hm from challenging the validity of his classification as a defense to his criminal prosecution.
We do not regard Falbo v. United States, supra, as a bar to this holding. Falbo involved an attempt to raise the invalidity of a registrant's classification as a defense to a criminal prosecution for failure to report to a civilian work camp. The Court noted that the defendant had not reported to the work camp and thus had not given the Selective Service System the opportunity to reject him for physical or mental reasons. According to the Court, the 'narrow question * * * presented * * * (was) whether Congress has authorized judicial review of the propriety of a board's classification in a criminal prosecution for wilful violation of an order directing a registrant to report for the last step in the selective process.' 320 U.S., at 554, 64 S.Ct. at 349. The Court held that Congress had not authorized such review.
The holding of the Court in Falbo was based in part on a fear of litigious interruption of the Selective Service System. We have dealt with that problem in other cases. See Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Oestereich v. Selective Service System Local Board, No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). It is not presented here. As noted above, the administrative process in this case is at an end.
Finally, the Court in Falbo was concerned with the possibility that a registrant might be rejected for physical or mental reasons, thus making a criminal prosecution unnecessary. But, as we have seen, the Selective Service System has ample means to ensure that the great majority of registrants will report for their pre-induction examinations. At the time Falbo was decided the regulations provided that the pre-induction examination was to be given at the time the registrant responded to the order to report for induction or to the work camp. See Gibson v. United States, 329 U.S. 338, 67 S.Ct. 301, 91 L.Ed. 331 (1946). Accordingly, the Selective Service System had no way to enforce the duty to report for an examination other than by a prosecution for failure to report for induction. An invalid classification, if allowed to be raised, would have been a complete defense to that prosecution; it would not be a defense today to a prosecution for failure to report for a pre-induction examination.
The principle of Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, should dispose of this case. There a registrant was plainly entitled to a statutory exemption from service because he was a divinity student. Yet he was denied the exemption because, having burned his draft card, he was classified as a 'delinquent' by Selective Service. He challenged that action in a civil suit for pre-induction review; and we granted relief.
This is not a suit for pre-induction review, but a defense tendered in a criminal prosecution. This statutory exemption is as clear as the one in Oestereich. The 'sole survivin' son of a family whose father had been killed in action is exempt and there can hardly be any argument that petitioner is such a 'son' though both his father and mother are dead. He is indeed the last male heir of the line and therefore one who Congress charitably decided should not be exposed to the chance of death in warfare.
The truth of the matter is that it was the Selective Service Board that acted in a 'lawless' manner;* and when its error is so egregious, it would be a travesty of justice to require a registrant—whether or not sophisticated—to pursue the administrative remedies that are designed for quite different categories of cases.
The Court's opinion, as I understand it, does not dispense with the necessity of presenting an issue under the draft laws to the registrant's local board for consideration in the first instance. Petitioner did exactly this, and by its decision, the Court provides no avenue for totally bypassing the Selective Service System and using the courts as an alternative to the local draft boards. Any decision to the contrary would be inconsistent with the well-established principle that the responsible administrative agency must be given 'an opportunity to consider the matter, make its ruling, and state the reasons for its action.' Unemployment Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 251, 91 L.Ed. 136 (1946). See generally 3 K. Davis, Administrative Law Treatise § 20.06 (1958). But presentation of the issue to the agency for consideration in the first instance does not complete the litigant's task under the exhaustion doctrine if he would seek resolution of that same issue in the courts. On the contrary, he must resort to appellate remedies available within the agency, and only after those remedies have been exhausted can he turn to the courts for review. See, e.g., United States v. Sing Tuck, 194 U.S. 161, 24 S.Ct. 621, 48 L.Ed. 917 (1904); Chicago, M., St. P. & P.R. Co. v. Risty, 276 U.S. 567, 575, 48 S.Ct. 396, 399, 72 L.Ed. 703 (1928).
It is petitioner's failure to exhaust appellate remedies available within the Selective Service System which presents the obstacle to the challenge of his classification in the courts. And while this facet of the exhaustion doctrine, like its other facets, admits of exceptions when special circumstances warrant, see, e.g., Donato v. United States, 302 F.2d 468 (C.A.9th Cir. 1962), I cannot agree with the Court's conclusion that petitioner's failure to exhaust appellate remedies within the System can be disregarded on the broader ground that only a question of law is involved. Questions of law have not, in the past, been thought to be immune from exhaustion requirements. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Indeed, this Court has often emphasized that the expertise of the responsible agency is entitled to great deference in matters of statutory construction,1 see, e.g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), thus refuting any contention that questions of law are somehow beyond the experts e of the agency and do not give rise to the considerations which underlie the exhaustion doctrine.
Although I would stop far short of the broad strokes used by the Court in this respect, I do agree that petitioner's failure to exhaust appellate remedies does not bar review of his classification on the facts of this case. Undoubtedly, Congress could require such exhaustion as a prerequisite to judicial review, see, e.g., Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), but Congress has not chosen to do so.2 In the absence of any such requirement, I do not think review of petitioner's classification is an impermissible encroachment upon the bailiwick of the Selective Service System. We are not faced with a situation in which consideration of the issue involved has stopped at the first level of the administrative machinery. Rather, petitioner's case and the scope of the § 6(o) exemption for sole surviving sons have received the attention of both the State and the National Directors of the Selective Service System. Petitioner has not exhausted the channels for formal appellate review within the System, but the informal review given petitioner's case and the ratification by the State and National Directors of the position taken by petitioner's local board are sufficient justification to permit the courts to entertain petitioner's defense that his classification is improper under § 6(o).
'Any * * * person * * * who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * * *, or rules, regulations, or directions made pursuant to this title * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.' Selective Service Act of 1948, § 12, 62 Stat. 622, as amended, now § 12 of the Military Selective Service Act of 1967 (see 81 Stat. 100, § 1(a)), 50 U.S.C.App. § 462 (1964 ed., Supp. III).
'Except during the period of a war or a national emergency declared by the Congress after the date of the enactment of the 1964 amendment to this subsection (July 7, 1964), where the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces of the United States, or subsequently died as a result of injuries received or disease incurred during such service, the sole surviving son of such family shall not be inducted for service under the terms of this title * * * unless he volunteers for induction.' Selective Service Act of 1948, § 6(o), 62 Stat. 613, as amended, 50 U.S.C.App. § 456(o).
A registrant has the right to appear before his local board to contest his classification or to present new information to the board. 32 CFR §§ 1624.1, 1624.2 (1969). The board then determines whether or not to reconsider the registrant's classification. 32 CFR §§ 1624.2(c), (d) (1969). Following the local board's decision, the registrant has the right to appeal to the state appeal board. 32 CFR §§ 1624.2(e), 1625.13 (1969). A further appeal may be taken by the registrant to the National Selective Service Appeal Board only if one or more members of the state appeal board dissent from the board's decision. 32 CFR § 1627.3 (1969).
After petitioner failed to report for induction the second time, the State Director confirmed that petitioner's father had been killed in action and then requested advice of the National Director. The latter replied that 'inasmuch as there is no family, it is not believed that (petitioner) would qualify for sole surviving son status.' This information was then communicated to the local board and the case referred to the local United States Attorney. Petitioner's indictment followed.
Cf. Pickens v. Cox, 282 F.2d 784 (C.A.10th Cir. 1960).
Section 6(h) of the Military Selective Service Act of 1967, 81 Stat. 102, authorizes the President to provide for the deferment of 'persons who have children, or wives and children, with whom they maintain a bona fide family relationship in their homes.' Section 6(h) of the Selective Service Act of 1948, 62 Stat. 611, was to the same general effect.
See, e.g., Layton & Fine, The Draft and Exhaustion of Administrative Remedies, 56 Geo.L.J. 315, 322—331 (1967).
'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * * after the registrant has respondd either affirmatively or negatively to an order to report for induction * * * Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.' 50 U.S.C.App. § 460(b)(3) (1964 ed., Supp. III).
We have recently had occasion to interpret this section in the context of pre-induction challenges to classifications. See Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968); Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). We have granted certiorari in Breen v. Selective Service Board, 394 U.S. 997, 89 S.Ct. 1592, 22 L.Ed.2d 774, cert. granted, to consider the applicability of § 10(b)(3) to pre-induction challenges to allegedly 'punitive' reclassifications.
See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).
The 1967 amendment, see n. 12, supra makes no reference to exhaustion of administrative remedies as a prerequisite to challenging the validity of a classification as a defense to a criminal prosecution for refusal to submit to induction. The legislative history of that amendment indicates that Congress was concerned with certain judicial decisions allowing pre-induction review of selective service classifications and the possibility that such 'litigious interruption' might seriously affect the administration of the Selective Service System. See Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 245 252, 89 S.Ct. 414, 420—424, 21 L.Ed.2d 402 (1968) (dissenting opinion).
Conscientious objector claims, Military Selective Service Act of 1967, § 6(j), 81 Stat. 104, 50 U.S.C.App. § 456(j) (1964 ed., Supp. III), or deferments for those engaged in activities deemed necessary 'to the maintenance of the national health, safety, or interest,' id., § 6(h)(2), 81 Stat. 102, 50 U.S.C.App. § 456(h)(2) (1964 ed., Supp. III), would appear to be examples of questions requiring the application of expertise or the exercise of discretion. In such cases, the Selective Service System and the courts may have a stronger interest in having the question decided in the first instance by the local board and then by the appeal board, which considers the question anew. 32 CFR § 1626.26. The Selective Service System is empowered by Congress to make such discretionary determinations and only the local and appeal boards have the necessary expertise. See Thompson v. United States, 380 F.2d 86 (C.A.10th Cir. 1967).
As noted above, the Selective Service System is not without power to correct its own errors without the intervention of the registrant. See nn. 4 and 5, supra.
It is true that we recently made specific reference to the exhaustion doctrine in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 235—236, n. 5, 89 S.Ct. 414, 415 416, 21 L.Ed.2d 402 (1968), a case where all administrative appeals had been exhausted. However, that case involved an attempt to challenge the validity of a classification before receipt of a notice of induction. A registrant's failure to appeal may have different implications if raised in a suit for pre-induction review.
See Billings v. Truesdell, 321 U.S. 542, 558, 64 S.Ct. 737, 746, 88 L.Ed. 917 (1944); Gibson v. United States, 329 U.S. 338, 349—350, 67 S.Ct. 301, 306—307, 91 L.Ed. 331 (1946); Sunal v. Large, 332 U.S. 174, 176, 67 S.Ct. 1588, 1589, 91 L.Ed. 1982 (1947); Cox v. United States, 332 U.S. 442, 445, 448, 68 S.Ct. 115, 116, 117, 92 L.Ed. 59 (1947).
While questions of law are usually routed through the available administrative machinery (see Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616), that principle evolved under regulatory schemes where agencies had general oversight and supervision over companies or other groups of individuals. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51, 58 S.Ct. 459, 463, 82 L.Ed. 638. Arguably, these Selective Service boards have no claim to that kind of expertise. But assuming that they do, the present 'legal' question is too transparent to be dignified in that manner.
The fact that the relevant statute is ambiguous or uncertain, e.g., Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 690, 58 L.Ed. 1121 (1914), or that the agency's interpretation of a statute comes while its interrelationship with the other parts of the regulatory scheme is as yet 'untried and new,' Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933), may accord the agency interpretation of the statute additional significance. And since the construction of the sole surviving son exemption is 'essentially a question of first impression,' ante, at 190, the importance of exhaustion—or of a failure to exhaust—is, perhaps, accentuated in this case. Any ambiguity in the language and legislative history of the statute, or any question as to the role which § 6(o) must play in the statutory scheme would be well suited to resolution by the Selective Service System in the first instance. Exhaustion of appellate remedies within the System would have afforded that agency full opportunity to apply its expertise to these and other questions, thereby facilitating the disclosure of factors which, although germane, are not highly visible to tribunals less familiar with the regulatory scheme.
Compare Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). Section 10(b)(3) of the Military Selective Service Act of 1967, 81 Stat. 104, prescribes the timing of judicial review—'after the registrant has responded either affirmatively or negatively to an order to report for induction' but does not speak to the exhaustion question.
It should be noted that where agency orders are not suspended during the pendency of an administrative appeal, Congress has seen fit to permit judicial review without exhaustion of appellate remedies. Administrative Procedure Act § 10(c), 5 U.S.C. § 704 (1964 ed., Supp. III). Under that section, however, if the agency action is inoperative during administrative review, the agency may require exhaustion by its own rules. Since induction may not be ordered during a registrant's appeal, 32 CFR §§ 1626.41, 1627.8 (1969), the Selective Service System could require exhaustion even if subject to § 10(c) of the APA. The administration of the draft laws, however, is not covered by the APA, and the necessity for exhausting appellate remedies would seem to rest on the general doctrine developed by the courts.