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songer_circuit

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Robert MORRIS et al., Appellants, v. WERNER-CONTINENTAL, INC., et al., Appellees. No. 71-2044. United States Court of Appeals, Sixth Circuit. Sept. 20, 1972. Stanley H. Sidicane, Nashville, Tenn., on brief for appellants. George W. Weber, Jr., Cincinnati, Ohio, Sorrell Logothetis, Dayton, Ohio, for appellees; Jack B. Josselson, Schmidt, Effron, Josselson & Weber, Cincinnati, Ohio, Sorrell Logothetis, and Robert C. Knee, Knee, Snyder & Parks, Dayton, Ohio, on brief. Before PHILLIPS, TUTTLE, and O’SULLIVAN, Circuit Judges. Elbert P. Tuttle, Senior Circuit Judge, United States Court of Appeals, Fifth Circuit, sitting by designation. TUTTLE, Circuit Judge. This appeal presents principally the question whether employees who are bound by arbitration provisions of a labor contract, having submitted a grievance to arbitration as provided in the contract, may appeal to the courts when it appears that the arbitration committee may have made an egregious error in the interpretation of terminology which controls the dispute. The issue is further complicated because of the circumstance that the rights of the complaining employees are to be fixed, under their bargaining agreement, by terminology used between their employer and another corporation and under such circumstances, it is doubtful that the employees complaining in this action have the standing to prevent a practical rewriting of the contract which fixes their rights as to seniority by the introduction of parol evidence completely changing the terminology used in the contract between the two corporations. The following facts seem undisputed; in any event they are to be taken most strongly in favor of the appellants-employees of Continental Truck Lines because the trial court dismissed their complaint on the ground that the court would not interfere with a determination by the Ohio Joint State Grievance Committee of the International Brotherhood. In 1967, after considerable negotiation, a “plan and agreement of merger” was entered into between Werner Transportation Company and Continental Transportation Lines, Inc. This agreement was denominated throughout as a merger of the two companies, thus giving rise to the issue here. After the agreement was signed, but before it had gone into effect, the question was raised as to the seniority status of the Continental employees, principally drivers, under the newly organized Werner-Continental, Inc. Both parties agreed that the Ohio Joint State Grievance Committee had established rules governing seniority as follows: “The established Ohio practice is that employees of the purchased company are placed at the bottom of the seniority list of the purchasing company. The past practice shall continue to apply to all Ohio domiciled employees, except in the event of merger when the seniority of the employees affected shall be dovetailed by chronological listing unless otherwise mutually agreed to by the parties.” The trial court found “in 1967 the Werner Transportation Company and Continental Transportation Lines, Inc. entered into a statutory merger agreement, which was subsequently approved by the respective stockholders. The new company was known as Werner-Continental, Inc., but, in fact, the Werner Transportation Company was the survivor, operations removed from the Continental terminals to the Werner terminals, and the Werner managers were retained in their former positions, while the Continental managers were delegated to an assistant manager position. Mr. Werner retained full control of the newly merged company. The evidence shows that Werner was at all times a successful, prosperous company, while Continental was in financial difficulty.” While we do not recognize the relevance of the findings beginning with “but in fact the Werner Transportation Company was the survivor,” they are not quite accurately stated. WernerContinental, Inc. was the survivor and it was the survivor with additional common capital stock authorized, and had issued a very substantial amount of preferred stock, which was exchanged for the stock of Continental and which was convertible into common stock of Werner-Continental upon the election of its owners. Moreover, it appears that the former president of Continental was chairman of the board of the new corporation, although having very limited operational duties to perform. It is apparent that the reference made by the trial court to the success of the one corporation and the financial difficulties of the other bears upon some tests that are occasionally utilized to determine whether there has actually been a purchase of a defunct or failing corporation by a successful one. This is unimportant in this case, because there is no proof that Continental was in a failing or insolvent condition, although they had suffered losses during a period shortly before the “merger.” Both companies being engaged in land transportation, it was necessary for an application for permission to create the merger to be submitted to the Interstate Commerce Commission for its approval. The application to the Interstate Commerce Commission designated the proposal as a “merger,” and the order issued by that Commission also carried that designation. It is not evident, however, from anything in the record that it would have been of any significance in the treatment of the matter by the Interstate Commerce Commission had the application indicated that Werner wished to purchase Continental. Mr. Werner, who at all times, both before and after the accession of Continental, was the managing head of Werner and of Werner-Continental, testified very frankly that the agreement to cast the association of the two entities in the form of a “merger” was a deliberate choice. He stated that he had tried to buy Continental as an outright purchase. He never made it clear, however, in his testimony, whether he wished for his company to purchase the assets subject to liabilities, or purchase the assets clear of liabilities, or to purchase the common stock from the stockholders of Continental. In other words, there is nothing in this record to indicate what it was Werner considered his company had purchased. The merger agreement called for the surrender of all of the common stock of Continental in return for preferred stock of Werner-Continental, Inc. convertible into common stock on a specified ratio. This is what is known as a tax-free reorganization for income tax purposes, and Mr. Werner testified that he was unable to make a purchase because Mr. Harris, the president of Continental, refused to proceed on that basis on advice of his counsel. The second reason given was employee morale, that is to say, the morale of the Continental employees, the very people who are now complaining. It is clear that the effect of Mr. Werner’s testimony is that he was told by Mr. Harris of Continental that they would have to “call the deal” a “merger” because the employees would be unhappy if, instead, Continental were in some way being sold out to Werner. The significance of this deception is that it was of great importance to the employees of Continental, in determining their course of action towards their employer, Continental, up to the time of the association of the two companies into one, to know whether they were to be dovetailed into the seniority system of the new corporation, which would be the case if it were a merger, as they were being told, or put at the bottom of the seniority list, as would be the case if it were a sale by Continental and a purchase by Werner, which they were objecting to. So we come up to the day of effective reorganization and for the first time the question is raised by Continental drivers who, naturally, wish to know what their seniority status is to be. They are first told by a letter from Mr. Werner that the transaction was a “merger” and they therefore would be dovetailed into the seniority list along with the Werner employees. Later, without any hearing of any sort, the committee received a correcting letter from Mr. Werner in which he stated that the transaction was a purchase and not a merger; thereupon, the committee set the matter down for hearing on a grievance or series of grievances that had been filed in the meantime by some of the drivers of Continental, the parties who are now sponsoring this action. During the consideration of the contention of Mr. Morris and his fellow Continental drivers that the transaction between the two carriers had been a merger, the following facts became apparent. The Vice President of Werner originally wrote to the Ohio Joint State Committee (hereafter OJSC) stating that the transaction was a “merger”, and that the seniority list would be dovetailed. He later wrote the Chairman of the OJSC stating that this determination of his had brought him a flood of complaints from his own drivers and that upon further consideration he was writing to advise the Committee that the transaction was a “purchase”, and that the Continental drivers would be placed at the bottom of the seniority list. Thereafter, at a hearing of the Committee, Mr. Morris introduced into the record copies of the minutes of Werner authorizing a “merger” with Continental, an application by Werner, over the signature of its president, to the Interstate Commerce Commission asking permission to enter into a “merger”, a notice to the stockholders of Werner, telling them of the plans for the “merger” with Continental, application to the Securities and Exchange Commission for a change in the name of Werner to Werner-Continental, in which the transaction is referred to as a “merger,” and finally a statement to stockholders in which the same terminology is used. The court can well get the feeling that what was done by the OJSC was simply to follow the dictates of Mr. Werner, even when he changed his mind, for, finally, following a May 15th session, the Chairman of the Committee announced the unanimous vote of the Committee as follows: “Following careful examination and consideration of all evidence submitted and after further investigation and consultation with legal counsel, it is the decision of the Ohio Joint State Committee that Werner Transportation Company did in fact purchase Continental Transportation Lines and the employees of Continental Transportation Lines are properly placed at the bottom of the consolidated seniority list of Werner-Continental, Inc. at the specified terminal points in accord with the established practice.” The plaintiffs do not contest the validity or effectiveness of the provisions in the National Master Freight Agreement establishing the grievance machinery, nor do they contest the applicability of the “practice” quoted above which provides that where two employers are joined by merger the employees are dovetailed for seniority purposes, whereas if they are joined by purchase the employees of the purchased company go at the bottom of the list. Their contentions here are, in effect, two-fold. The first contention is that the order of the ICC, which is an essential for the carrying on by the new Werner-Continental, Inc. of its transportation business, is res ad judicata of the fact that this was a “merger” and not a “purchase” by Werner of Continental. The second is that there were defects in the OJSC proceedings which make it null and void. The trial court stated: “This court cannot and will not decide whether there was a merger or purchase in this case.” Citing [United] Steel Workers v. American Manufacturing Company, 363 U.S. 564 [80 S.Ct. 1343, 4 L.Ed.2d 1403], together with [United] Steel Workers v. Warrior and Gulf [Navigation] Company, 363 U.S. 574, [80 S.Ct. 1347, 4 L.Ed.2d 1409] and [United] Steel Workers v. Enterprise [Wheel & Car] Corp., 363 U.S. 593, [80 S.Ct. 1358, 4 L.Ed.2d 1424] 1960. Little need be said with respect to the contention of the appellants that the action of the Interstate Commerce Commission was res adjudicata as to the proper relationship between Werner and Continental at the time they became one. That is, whether this was a “merger” or “purchase.” That was not an issue before the Interstate Commerce Commission. Appellant concedes that if the application filed with the ICC had stated it to be a “purchase” instead of a “merger”, it would have made no difference. Thus, there was no contested issue as to which the order of the ICC undertook to offer a solution dealing with this problem. With respect to the contention that certain procedural requirements were not met and that the Union breached its duty of fair representation of these particular appellants, we think it necessary to say that there were findings by the trial court rejecting these contentions. In the first place the court found that “the plaintiffs waived any objections they may have had to the alleged irregularities”, citing Order of Railway Conductors v. Clinchfield R.R. Company, C. A.6, 1969, 407 F.2d 985. In the Clinchfield case, this court held that the plaintiff had waived objections to the size of the Arbitration Board by acquiescence to the arbitration. With respect to the allegations that the Union representatives on the Joint Committee were either biased or had a conflict of interest or failed actively to present the contentions of the Continental drivers, the trial court said: “On the facts of this ease we cannot find the requisite fraud, collusion, bad-faith, or hostile discrimination “The Union was in a difficult position in this case. It was charged with the duty of representing both the former Werner employees and the former Continental employees. The evidence shows that three of the four locals involved took a neutral position on the seniority question. The fourth local actively tried to secure a dovetailed seniority list, as does plaintiff. The position of neutrality did not prevent the locals from processing grievances to the OJSC, thereby setting the stage for a full and final decision on the merits. Neutrality in this situation does not show bad faith any more than it shows breach of duty of fair representation (citing Bieski v. Eastern Automobile Forwarding Company, 3 Cir. 1968, 396 F.2d 32). It is probably the most prudent position for a Union to take in this situation “In summary, we hold that the bargained for arbitration procedure was adequate to provide, and actually did provide, a fair decision; and that plaintiff did not sustain his burden of proof that the Union breached its duty of fair representation.” The recurrent theme which runs through appellants’ brief and argument is that it simply can’t be possible for the courts to permit the Continental drivers to be deprived of the rights to which they are entitled under the Ohio Past Practice by being dovetailed as to seniority with the drivers of Werner under the circumstances of this case. Although not saying so in so many terms, their argument runs to the proposition that it can be nothing more than an ipse dixit for the OJSC, purely on the say-so of Mr. Werner or some lawyer’s advice, to say that when all of the documents relating to the affiliation between the two companies were admittedly in terms of “merger” this was no merger at all, but was purchase of some undescribed property. It is extremely difficult for us to see how the OJSC could translate or transform the merger that actually took place into a purchase. However, perhaps unfortunately for the Continental drivers, but, also, fortunately for the promotion of industrial peace in general, it is not our place to decide this issue, nor was it the function of the trial court. If any principle is generally recognized in labor relations these days, it is that the grievance procedures, leading ultimately to arbitration, if provided in a labor contract, as they most always are, are to be given the broadest possible construction. The law is well settled in this regard, since the three Supreme Court decisions, United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). As pointed out by the Supreme Court in those cases, the process of hearing and passing on grievances is part of the regular warp and woof of industrial labor-management relations. When the parties agree to contracts such as the National Master Freight Agreement, which has the explicit provision to the effect that questions of seniority shall be subject to grievance procedures, the courts will not only refrain from hearing appeals from the awards of such arbitration as may finally result in such grievance matters, but courts will, by injunction, require the parties to proceed with the arbitration proceedings in the event either of them should decline to do so. This group of cases teaches us another thing as well — that is, that so long as there is an absence of fraud or bad faith or demonstrated bias or collusion, the decision by the arbitrators or, here, the Joint Committee, is final and binding and courts are generally powerless to interfere. It became the duty of the Joint Committee here to determine what the parties to the National Master Freight Agreement meant when they spoke of a “merger” and of a “purchase.” While, as we have said, it would appear very difficult for any court to hold that on the record which we have disclosed above, there was anything other than a “merger” in the ordinary legal sense, it turns out that the members of the committee, in solving a labor dispute, are not restricted to the legal terminology- that would be binding on courts. Neither are they restricted to the written contracts' between two parties, neither of whom is before the court. In sum, we conclude that having found the fact relating to the fairness of the proceedings as it did, the court properly declined to set aside the decision of the Ohio Joint State Committee. This decision by the court was fully justified by the language of the Supreme Court’s opinion, “Words in a collective bargaining agreement, rightly viewed by the court to be the charter instrument of a system of industrial self-government, like words in a statute, are to be understood only by reference to the background which gave rise to their inclusion. The Court, therefore, avoids the prescription of inflexible rules for the enforcement of arbitration promises. Guidance is given by identifying the various considerations which a court should take into account when construing a particular clause — considerations of the milieu in which the clause is negotiated and of the national labor policy. It is particularly underscored that the arbitral process in collective bargaining presupposes that the parties wanted the informed judgment of an arbitrator, precisely for the reason that judges cannot provide it. Therefore, a court asked to enforce a promise to arbitrate should ordinarily refrain from involving itself in the interpretation of the substantive provisions of the contract.” The judgment is affirmed. . We use this terminology because no where in the record is any effort made to explain what it is that even Mr. Werner thought the Werner Company had purchased. Certainly it didn’t purchase the rolling stock or the terminals or the charter or the good will, or even the stock from the Continental stockholders. The latter was particularly avoided, because as we read the testimony, it is plain that the transaction was cast in the form of a taxfree reorganization for income tax purposes. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

sc_certreason

M

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. KREMEN et al. v. UNITED STATES. No. 162. Argued March 6, 1957. Decided May 13, 1957. Norman Leonard argued the cause and filed a brief for petitioners. Kevin T. Maroney argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Tompkins, Harold D. Koff-sky, Philip R. Monahan and Carl G. Coben. Per Curiam. Of petitioners’ various contentions we find the one relating to the validity of the search and seizure made by agents of the Federal Bureau of Investigation disposi-tive of this case, and we therefore need not consider the others. The indictment charged the three petitioners with relieving, comforting, and assisting one Thompson, a fugitive from justice, in violation of 18 U. S. C. § 3, and with conspiring to commit that offense in violation of 18 U. S. C. § 371. In addition, it charged petitioners Kremen and Coleman with harboring Steinberg, also a fugitive from justice, and with conspiring to commit that offense. Petitioners were found guilty, and on appeal their convictions were sustained, one judge dissenting. 231 F. 2d 155. Because of the unusual character of the search and seizure here involved, we granted certiorari, without, however, limiting the writ. 352 U. S. 819. Thompson and Steinberg had been fugitives from justice for about two years when agents of the Federal Bureau of Investigation discovered them, in the company of Kremen, Coleman and another, at a secluded cabin near the village of Twain Harte, California. After keeping the cabin under surveillance for some 24 hours, the officers arrested the three petitioners and Thompson. Thompson and Steinberg were arrested outside the cabin; Kremen and Coleman, inside. The agents possessed outstanding arrest warrants for Thompson and Steinberg, but none for Kremen and Coleman. These four individuals were searched and documents found on their persons were seized. In addition, an exhaustive search of the cabin and a seizure of its entire contents were made shortly after the arrests. The agents possessed no search warrant. The property seized from the house was taken to the F. B. I. office at San Francisco for further examination. A copy of the F. B. I.’s inventory of the property thus taken is printed in the appendix to this opinion, post, p. 349. The majority of the Court are agreed that objections to the validity of the search and seizure were adequately raised and preserved. The seizure of the entire contents of the house and its removal some two hundred miles away to the F. B. I. offices for the purpose of examination are beyond the sanction of any of our cases. While the evidence seized from the persons of the petitioners might have been legally admissible, the introduction against each of petitioners of some items seized in the house in the manner aforesaid rendered the guilty verdicts illegal. The convictions must therefore be reversed, with instructions to grant the petitioners a new trial. Reversed. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

songer_concur

1

What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court. Ethel TOLBERT, Administratrix of the Estate of Denver Tolbert, Appellant, v. UNION CARBIDE CORPORATION, a corporation, Appellee. No. 73-1513. United States Court of Appeals, Fourth Circuit. Submitted Dec. 4, 1973. Decided April 3, 1974. Rudolph L. Di Trapano, Charleston, W. Va., on brief for appellant. W. T. O’Farrell and Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief for appellee. Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges. CRAVEN, Circuit Judge: At age 52 and after almost 16 years’ service with Union Carbide Corporation (the Company) at its Alloy, West Virginia, plant, Denver Tolbert was laid off on August 5, 1962, due solely to a reduction in force. He had been paid for the one week of his remaining vacation time and had received two weekly payments under the Company’s Layoff Allowance Plan when, on August 20, he was severely injured while repairing a barn roof. His injuries resulted in permanent and total disability. Subsequent to this injury Tolbert received two further weekly payments under the Layoff Allowance Plan, the final payment being made on September 6. On September 21 he was notified in writing to report back to work, but because of his injuries he was unable to do so. At the time of Tolbert’s layoff and injury, the Company was subject to the terms of a collective bargaining agreement (the agreement) with the Oil, Chemical and Atomic Workers International Union (the Union) which incorporated two types of disability benefits for employees of the Company. The first, known as a “Non-Oecupational Disability Plan,” was included in the company-union agreement as Appendix D and provided benefits to employees with at least one year of company service credit, but specifically excluded employees who had been laid off. The second plan, entitled “Disability Benefit Prior to Age 65,” was included in “The Pension Plan,” a separate document incorporated by reference into the agreement and applicable only to employees with more than 15 years’ company service credit. No provision of the Pension Plan dealt with the question of whether benefits would be available to employees who were laid off. No attempt was made under either plan to define “employee” or “termination of employment.” This action was instituted by Ethel Tolbert, administratrix of the estate of Denver Tolbert, to recover disability benefits under the second (the Pension Plan) provision. Jurisdiction was premised on diversity of citizenship, 28 U. S.C.A. § 1332, but we note that jurisdiction is also proper under Section 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a), since the benefits claimed arise out of a collective bargaining agreement between an employer and a labor organization. Because jurisdiction under Section 301(a) is proper, substantive federal law governs the rights of the parties. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957). Since neither party sought arbitration to determine the meaning of the agreement, *****8 the district judge, upon the motion for summary judgment, properly sought to interpret the agreement. Based on analogy to cases involving group insurance plans taken out by employers with insurance carriers and the interrelationship of various parts of the company-union agreement, the district judge granted the motion for summary judgment. We reverse. Individual employees may bring suit under Section 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a), to vindicate rights arising from the collective bargaining agreement between their employer and union. Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L.Ed.2d 370 (1964). Unlike the cases cited by appellee, the contract from which the rights and duties of the parties arise is not subject to traditional rules of interpretation. The contract is not between employer and insurance carrier, but rather between employer and union. In Transportation-Communication Employees Union v. Union Pacific R. R. Co., 385 U.S. 157, 87 S.Ct. 369, 17 L.Ed.2d 264 (1966), the Supreme Court stated, “A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts which control private contracts.” 385 U.S. at 160-161, 87 S.Ct. at 371. And in United Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the court noted: It [the collective bargaining agreement] is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate .... The collective agreement covers the whole employment relationship. It calls into being a new common law — the common law of a particular industry or of a particular plant. 363 U.S. at 578-579, 980 S.Ct. at 1351. See Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999 (1955); Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482 (1959). In view of these observations, we believe the district judge erred in restricting his interpretation of the pension plan and its disability provisions to the four corners of the agreement. The drafters of the pension plan simply did not consider this particular situation— whether an employee who is qualified for disability benefits under the pension plan due to his company service of more than 15 years can be denied disability benefits under the plan because at the time of his injury he was laid off. The district court treats this issue in terms of whether or not the layoff of Tolbert constituted a “termination of employment.” In concluding that such a termination took place on August 5, 1962, the court refers to two portions of the company-union agreement. First, it is argued that payment of a layoff allowance to Tolbert negates any inference that the layoff was only a temporary suspension of work (and thus not a “termination”) because of the specific language of the agreement that “a layoff allowance is payable to an employee . who is laid off on account of lack of work; unless the layoff is caused by a temporary suspension of work . . . . ” This analysis is further bolstered, the district court reasons, by use of the word “reemployed” in referring to the seniority status of an employee who goes back to work after having been paid a layoff allowance. Second, the district court relies on the provision of the pension plan itself in determining when disability benefits are payable. Section 3 of Part B (“Disability Benefit Prior to Age 65”) of the Pension Plan provides, in part: The Disability Benefit for an employee who qualifies under this Plan shall begin on the first day of the month immediately following the expiration of 26 consecutive weeks after he ceased active employment as a result of such disability. (Emphasis added.) This provision, it is argued, evidences an intent that only those employees “actively employed” at the time of injury are entitled to the benefits of the Pension Plan’s disability provisions as opposed to those who have been laid off. While this language is clearly supportive of the district court’s conclusion, it must be viewed in a larger context. The agreement contained two disability provisions — one which provided benefits to employees with a year or more company service but which specifically excluded employees who had been laid off, and a second plan (the Pension Plan) designed for employees with lengthy service to the company but with no provision corresponding to the first plan’s provision which excluded laid-off workers. It seems a fair inference that, because of (1) a failure to specifically exclude laid-off employees from disability benefits under the Pension Plan where such exclusion was specified in the Non-Occupational Disability Plan, and (2) the agreement’s obvious concern for the welfare of employees with lengthy company service, as evidenced by the adoption of the Pension Plan, the drafters of the agreement intended that disability benefits under the Pension Plan extend to laid-off employees. Certainly it cannot be argued that by paying a layoff allowance to an employee the company can escape payment of accrued pension benefits where the employee is laid off prior to reaching retirement age. Under the terms of the Pension Plan, pension benefits are clearly vested after ten years of company service. We believe the disability benefits of the Pension Plan are also vested where an employee has more than 15 years’ company service credit and that such benefits are not dependent on his being actively employed at the time of injury. That Tolbert qualified for the Layoff Allowance Plan benefits did not disqualify him for disability benefits. The two plans have entirely different purposes. That the payment of a layoff allowance is indicative of a termination of employment is inconsequential where the employee has the requisite number of years of company service to qualify him for the disability plan. Furthermore, we note that while a layoff allowance is not required, under the terms of the agreement, to be paid where “the layoff is caused by a temporary suspension of work,” nothing in the plan prohibits payment of an allowance, even where the layoff is only temporary. The fact that Tolbert was called back to work less than seven weeks after being laid off, though hindsight, seems to indicate that the company’s reduction in force was never considered permanent. “Reemployed,” as used in Appendix C (“The Layoff Allowance Plan”), is within a context totally different from' the issue here under consideration; it relates only to computation of company service credit. Thus, an employee who is laid off is not entitled to count the period of time laid off as part of his company service credit for purposes of obtaining greater pension or disability benefits. But this provision has no bearing on who is entitled to get those benefits. The same is true of the provision in the Pension Plan that disability benefits begin 26 weeks after the employee “ceased active employment .” We attribute no significance to this phrase since it evidences only the beginning point of payments in the typical situation — where the employee was injured while actively employed. The situation of Tolbert is one of those “unforeseeable contingencies” which a collective bargaining agreement could not be expected to anticipate and in which it would be error for a court, as in an ordinary contract dispute, “to make the words of the contract the exclusive source of rights and duties.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 579, 80 S. Ct. 1347, 1351, 4 L.Ed.2d 1409 (1960), quoting Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1498-99 (1959). Based upon our view of the purpose behind the inclusion of the Pension Plan in the agreement — to give employees with lengthy company service greater security than those with less service — and the failure of the drafters to exclude laid-off workers from this plan where such exclusion was specified in the company’s other disability plan, we find that Tolbert was entitled to benefits under the Pension Plan’s disability provisions. The decision of the district court is reversed, and the case is remanded to the district court with instructions to enter judgment and assess damages accordingly. Reversed and remanded. . The section on “Conditions of Payment” under Appendix D provides: No payments under this plan will be made to employees who have been laid off, or who are on leave of absence. . A question, not addressed by counsel, arising from the “Pension, Insurance, Hospital-Surgi-eal-Medical Plan Agreement” between Union Carbide and the Union is whether this dispute should have been submitted by the employee under grievance procedures set out in the principal collective bargaining contract. Part I, Section 3 of this agreement states: It is understood that if any dispute shall arise between the Company and any bargaining unit employee under the Pension Plan as to: (a) The calculation of his Company Service Credit; (b) The age of the employee; (c) His average straight-time monthly earnings; or (d) Whether an applicant, who shall have been determined to be totally and permanently disabled and who shall have at least fifteen (15) years of Company Service Credit but shall not have attained the age of sixty-five (65) years, shall have become totally and permanently disabled through any of the causes enumerated in Section II, Part B. Section 2 of the Pension Booklet; then such dispute may be taken up through the Grievance Procedure of the Principal Collective Bargaining Contract between the parties then in effect. As noted above, substantive federal law applies because the collective bargaining agreement is covered by § 301(a) of the Labor-Management Relations Act, 29 U.S.C.A. § 185(a). In Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), the Supreme Court stated: As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by the employee and union as the mode of redress. 379 U.S. at 652, 85 S.Ct. at 616. There are two reasons, aside from the fact that the employer-union agreement involved here is not the “principal” collective bargaining agreement, that the “general rule” of the Maddox case should not apply. First, the question here — whether Tolbert was, in fact, an “employee” of the Company under the terms of the Pension Plan — -is not-one of the four types of disputes to be resolved by reference to the grievance procedure of the collective bargaining agreement. (See (a), (b), (c), and (d) of Part I, Section 3 set out above.) Cf. Smith v. Union Carbide Corp., 350 F.2d 258 (6th Cir. 1965), reversing, 231 F.Supp. 980 (E.D.Tenn.1964); Rhine v. Union Carbide Corp., 343 F.2d 12 (6th Cir. 1965), reversing, 221 F.Supp. 701 (W.D.Ky. 1964). Second, even if this dispute is covered by Part I, Section 3, the specific language of subsection (d) states only that “such dispute may be taken up through the Grievance Procedure . . . .” (Emphasis added.) This language, we believe, indicates an agreement between the parties that an individual “employee” can avoid the contract procedure and sue in the courts. Cf. Maddox, supra, 379 U.S. at 657-659, 85 S.Ct. 614. While, in a suit to compel arbitration, the question of arbitrability considered above would be reserved in the first instance for decision by the arbitrator, subject to review by the courts, see United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), there is here no attempt by the Company to compel arbitration. In these circumstances, we believe it unfair to the appellant for this court, sua sponte, to stay the action pending arbitration. Consequently, we proceed to the merits of the controversy. . While a number of eases deal with discharged employees’ rights to pension benefits where the plant at which they worked is permanently closed, Schneider v. Electric Auto-Lite Co., 456 F.2d 366 (6th Cir. 1972); Knoll v. Phoenix Steel Corp., 325 F.Supp. 666 (E.D.Pa.1971), aff’d 465 F.2d 1128 (3d Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 941, 35 L.Ed.2d 257 or where the company which employed them merged with another enterprise, Lucas v. Seagrave Corp., 277 F.Supp. 338 (D.Minn,1967), the precise problem raised by this case has apparently never been litigated. . Appendix C, “Layoff Allowance Plan,” of the collective bargaining agreement provides: 3. A layoff allowance is payable to an employee who has three (3) months or more company service credit and who is laid off on account of lack of work; unless the layoff is caused by a temporary suspension of work or the employee was hired for intermittent or casual work or as a temporary worker for a limited time or specified project. In case an employee is reemployed by the Company after he had been paid a layoff allowance, his company service credit for any subsequent layoff allowance consideration shall start from the date of such reemployment. . We do not suggest that disability benefits ordinarily vest. Indeed, vesting is probably the rare exception, as indicated by the disability compensation plans detailed in Appendix D and E of the collective bargaining agreement (Defendant’s Exhibit I). Nothing in those plans suggests the vesting of benefits. The Pension Plan, however, is a separate and distinct provision designed for employees with lengthy company service. By its terms, the Pension Plan unquestionably vests benefits in employees with the requisite amount of service, as Example 3 at page 11 of the Plan (Defendant’s Exhibit II) makes clear. The Disability Benefit Plan, attached to and constituting Part B of the Pension Plan, restricts benefits to employees with 15 years or more of company service (10 years or more in order to obtain pension benefits). If vesting were not intended, it would have been a simple matter to draft this special plan in accordance with the other company disability plans (Appendix D and E) to avoid vesting. If we treat the district court’s conclusion that the layoff of Tolbert constituted a “termination of employment” as a finding of fact, it is entitled, of course, to tbe protection of the clearly erroneous rule. Assuming, without deciding, that Tolbert was in fact permanently terminated, we hold nevertheless that Tolbert was within the coverage of the Pension Plan because of vesting. But it is worth mentioning that Tolbert may have been an “employee” at all critical times and, as such, within the coverage of the plan. In Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 287, 66 S.Ot. 1105, 1112, 90 L.Ed. 1230 (1945), the Supreme Court said in a different context: A furlough is not considered a discharge. It is a form of lay-off. So is a leave of absence. And whether either results from unilateral action by the employer or otherwise, consequences are quite different from termination of the employment relationship. An employee on furlough or on leave of absence has a continuing relationship with the employer; he retains a right to be restored to work under specified con- ■ ditions. Question: What is the number of judges who concurred in the result but not in the opinion of the court? Answer:

songer_casetyp1_7-3-5

L

What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits". BARBOUR v. DRAVO CORP. No. 11059. United States Court of Appeals Third Circuit. Argued Dec. 8, 1953. Decided Dec. 16, 1953. Hymen Schlesinger, Pittsburgh, Pa., for appellant. John R. Bredin, Pittsburgh, Pa. (Dal-zell, Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellee. Before KALODNER, STALEY and HASTIE, Circuit Judges. PER CURIAM. The plaintiff, William J. Barbour, a seaman, brought suit against the defendant, Dravo Corporation, under the Jones Act for damages alleged to have been sustained in suffering a disabling skin disease from contact with fuel oil and oil fumes in the engine room of the vessel on which he was employed. In his complaint the plaintiff alleged unseaworthiness of the vessel and negligence on its part. The case was tried to the Court below without a jury. It found that (1) the vessel was seaworthy and (2) there was no negligence on the part of the defendant which was the proximate cause of the plaintiff’s skin disease, and accordingly, by Order, entered judgment against the plaintiff and in favor of the defendant. Our review of the record discloses that the findings of the Court below and its Order are fully supported by the evidence. For the reasons stated the Order of the Court below will be affirmed. . 46 U.S.C.A. §688. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:

songer_genresp1

G

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. INDEMNITY INS. CO. OF NORTH AMERICA v. HINKLE. No. 10016. Circuit Court of Appeals, Fifth Circuit April 28, 1942. As Amended May 27, 1942. Richard H. Switzer and Yal Irion, both of Shreveport, La., for appellant. Harry V. Booth, of Shreveport, La., for appellee. Before FOSTER, SIBLEY, and HOLMES, Circuit Judges, HOLMES, Circuit Judge. Appellee recovered a judgment in the court below for damages for injuries sustained when she slipped and fell as she was leaving Michael’s Cafeteria in Shreveport, Louisiana. It is contended on appeal that the trial court committed error in overruling appellant’s motion for a directed verdict, because appellee’s evidence did not make out a case for the jury, and because the evidence disclosed, as a matter of law, that appellee was guilty of contributory negligence. Appellant was the public liability insurer of the cafeteria. There is no dispute as to the exact scene of the accident or the structure and condition of the premises at that place. As appellee stepped from the interior of the cafeteria into the foyer leading to the street, her foot slipped upon the sloping tile surface of the floor of the foyer and caused her to fall. The premises were in perfect condition and were well lighted, but it was claimed that the extreme slope of the floor, being surfaced with slippery tile and partially obscured from view by the paneling of the door entering thereon, created a hazardous condition that rendered the foyer unsafe for the use to which it was put. We deem it unnecessary- to make an extended statement of the facts. The plaintiff’s evidence may be summarized as follows: Three building contractors, who. were qualified as experts, testified that they had examined the foyer and were of the opinion that the foyer floor was dangerous; seven witnesses, other than the plaintiff, testified that they had slipped upon the surface of the foyer while attempting to leave the cafeteria under similar conditions; and there was evidence from which the Jury reasonably might have inferred that the operator of the cafeteria, at a date prior to the accident, and upon learning of a fall sustained in • the foyer by another patron of the cafeteria, apprehended the hazardous condition in the foyer and placed a rubber mat there, which had been worn out and taken up prior to the date the appellee fell. We think this evidence was sufficient to -justify the submission of the case to the -jury, and to. support its finding that the foyer was not a reasonably safe place for use as a walkway. Under the law of Louisiana it is the duty of a store-keeper to provide his patrons a reasonably safe place in which to transact business with him. The pleadings charged that appellee was contributorily negligent in that she was devoting no attention to where or how she was walking, and was not maintaining a proper look-out. Ther.e is no direct evidence in the record to show that, at the time of the accident, appellee was not exercising ordinary care for her safety. This defense apparently is grounded solely upon the theory that, since appellee was familiar with the physical structure of the floor, she was charged with knowledge of the hazard it presented to any one walking over it, and was negligent in voluntarily assuming that risk or in proceeding over the tile without exercising whatever greater than ordinary degree of care was necessary to pass across the foyer safely. It was not shown that appellee had ever before encountered difficulty in passing over the foyer floor, or that she had known or heard of any one slipping upon the tile surface. She was entitled to assume that the establishment would be maintained in a condition rendering it unnecessary that she be constantly alert for her safety. Whether the dangerous condition, found by the jury to exist by reason of the construction of the foyer floor, was or should have been known to this appellee who occasionally had walked over it, was, under the evidence, a question for determination by the jury. The judgment is affirmed. Farrow v. John R. Thompson Co., 18 La.App. 404, 137 So. 604; Grigsby v. Morgan & Lindsey, La.App., 148 So. 506; Ransom v. Kreeger Store, La.App., 158 So. 600; Walsh v. Whitney National Bank, La.App., 4 So.2d 553. Ransom v. Kreeger re, La.App., 158 So. 600. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:

songer_procedur

A

What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Eric DAHLBERG, Plaintiff-Appellant, v. Carl F. BECKER; Govern, McDowell & Becker; Ellen M. Dahlberg; and Harvey E. Stoddard, Jr., Defendants, Carl F. Becker; Govern, McDowell & Becker; and Ellen M. Dahlberg, Defendants-Appellees. No. 1374, Docket 84-7219. United States Court of Appeals, Second Circuit. Argued June 20, 1984. Decided Nov. 9, 1984. Herbert Jordan, Roxbury, N.Y. (Randlett Walster, Rural Legal Rights Foundation, Inc., Roxbury, N.Y., of counsel), for plaintiff-appellant. John E. Hunt, Utica, N.Y., (Andrea Lynch, Kernan and Kernan, P.C., Utica, N.Y., of counsel), for defendants-appellees Carl F. Becker and Govern, McDowell and Becker. Before MESKILL, CARDAMONE and ROSENN, Circuit Judges. Honorable Max Rosenn, United States Circuit Judge for the Third Circuit, sitting by designation. CARDAMONE, Circuit Judge: This appeal from an order, dismissing plaintiff’s complaint for failure to state a claim, made by the United States District Court for the Northern District of New York (Miner, J.), 581 F.Supp. 855, presents a question of first impression that involves the well-known litany of Title 42 U.S.C. § 1983, which states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Despite our familiarity with the refrain, the scope and meaning of the words have not proved easy to define. This case provides yet another opportunity to explore the contours of § 1983. In venturing into the unplumbed depths of “state action,” a sense of the strong yet uncertain cross-currents in this area of the law leads us to hug the known legal shore as closely as possible. I The facts in this case stem from a dispute between plaintiff, Eric Dahlberg, and defendant, Ellen Dahlberg, his former wife. A matrimonial proceeding between them ended in a default divorce and a stipulation of settlement which was executed by the parties and later incorporated in a June 1982 decree. When the plaintiff failed to make the payments required by the stipulation, his wife’s attorneys — co-defendants in the present litigation — prepared an order to show cause why he should not be held in contempt. The order stated that plaintiff owed defendant $1,785 for maintenance and $800 in costs and fees to her attorneys and that he had neglected to execute certain documents, including a promissory note for $8,000 and security instruments covering certain machinery. The show cause order, presented ex parte on November 23, 1982 to an Acting New York State Supreme Court Justice for Delaware County, was made returnable in December at Special Term. When neither plaintiff nor his attorney appeared on the return date, the Special Term Justice found Dahlberg guilty of contempt and signed an order which provided that he could purge himself of contempt by paying the maintenance arrearage and signing the requisite promissory notes and financing statements. The order also stated that further noncompliance on Dahlberg’s part would cause an order of commitment to issue. When Dahl-berg again failed to respond, Special Term signed a commitment order that resulted in Dahlberg’s arrest on June 7, 1982 by the Sheriff of Schoharie County. After plaintiff was transported to the county jail, he was advised that to obtain his release he would have to pay $300 in maintenance, $2500 in attorneys’ fees, plus the sheriff’s fees. Upon reading the order of commitment, the Schoharie County Court Judge who conducted the arraignment told Dahl-berg that he had no alternative but to hold him without bail. Later that same afternoon Dahlberg’s friends provided him with the necessary funds, promissory notes and financing statements. Despite plaintiff’s willingness to meet these obligations, the County Court Judge refused to order plaintiff’s release absent authorization from either a State Supreme Court Justice or Ellen Dahlberg’s attorneys. Plaintiff was therefore confined overnight in the Scho-harie County jail. The next morning, June 8, defendant’s attorneys telephoned the County Court Judge and authorized plaintiff’s release, contingent on his signing the requisite documents and paying the maintenance and attorneys’ fees. Shortly before noon Dahlberg was again before the county court where he signed the documents, paid the fees and obtained an order releasing him from jail. Based on these events, plaintiff commenced the present action in district court pursuant to 42 U.S.C. § 1983. In his complaint he alleges that Ellen Dahlberg and her attorneys acted under color of state law to cause his unlawful arrest and imprisonment violating his Fourteenth Amendment rights. Specifically, Dahlberg asserts that defendants, intentionally and/or negligently: (a) prepared a false affidavit and submitted it to the New York State Supreme Court in support of the show cause order as a basis for obtaining a promissory note and financing statements to which, he alleges, defendants were not entitled; (b) omitted from the order to show cause the notice and warning required by section 756 of the New York Judiciary Law; (c) violated section 761 of the New York Judiciary Law by serving an order to show cause for contempt upon an attorney whose authority had expired; and (d) failed to include with the commitment order either the actual promissory note and financing statements or a satisfactory description of those documents so that the County Court Judge could assess plaintiffs compliance and thereby avoid his needless incarceration. As a result, Dahlberg claims to have suffered damages from lost work, work improperly performed by unsupervised employees, injury to business reputation, as well as extreme shock, outrage, degradation and humiliation. Ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), Judge Miner concluded that Dahlberg’s complaint failed to state a claim upon which relief can be granted. He found it clear that neither Ellen Dahlberg nor her attorneys acted under color of state law. Plaintiff has not appealed the dismissal of his suit against Ellen Dahlberg. In his appeal of the dismissal of his suit against defendant attorneys, plaintiff renews his contention that through their joint participation with a state official as well as their independent exercise of power allegedly ceded to them by a state official they acted under color of state law. Although we affirm the result reached by the district court jduge, we do so for somewhat different reasons. II Since the judgment below was premised on Fed.R.Civ.P. 12(b)(6), we note at the outset that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, in passing on a motion to dismiss, the allegations of the complaint must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975). Even accepting Dahlberg’s allegations as true, his complaint does not state a cause of action under 42 U.S.C. § 1983. We start with the words of the Fourteenth Amendment that no State shall deprive any person of life, liberty or property without due process of law. By enacting 42 U.S.C. § 1983 Congress provided a remedy for a claimed violation of this constitutional guarantee. The statute permits suit upon deprivation under color of any state statute, ordinance, regulation, custom or usage of one’s life, liberty or property without due process of law. • Section 1983 protects an individual’s rights against governmental action, as distinct from private action, whether the government is state or municipal. As a corollary, individuals are also protected against acts of private parties who act in concert with government officials. In order to allege a good cause of action, plaintiff must charge first that the conduct complained of has deprived him of a constitutionally-protected right; and second, that the conduct allegedly causing the deprivation was fairly attributable to the State. The Supreme Court has set forth a two-part analytical approach to this question of “fair attribution.” Plaintiff must show that the allegedly wrongful action occurred as a result of the exercise of a state-created right or privilege, or by a state-imposed rule of conduct. Plaintiff must also show that the party charged with the deprivation is a person who is a state official or someone whose conduct is otherwise chargeable to the State. In other words, to establish deprivation of a federally-protected right there must be both “state action” and a “state actor.” Since both parties to this appeal rely on Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 78 L.Ed.2d 482 (1982), to support their opposing conclusions, we undertake to analyze it in some depth. The facts are relatively simple. A truckstop operator in Virginia indebted to his supplier was sued in state court on the debt. Simultaneously, the supplier sought prejudgment attachment of the debtor’s property pursuant to Virginia law. Acting upon the supplier’s ex parte petition, a state court clerk issued a writ of attachment that was executed by the county sheriff. As a result, the debtor’s property was sequestered for 34 days, at which time the attachment was dismissed due to the supplier’s failure to establish a statutory basis for the issuance of the writ. The debtor thereupon sued under § 1983 alleging that the supplier, a private party, had acted jointly with the State to deprive him of his property without due process of law. Id. at 924-25, 102 S.Ct. at 2747-48. Lugar proceeded to outline a standard for determining the presence of state action. The Court held that the conduct causing the deprivation of a federal right must be fairly attributable to the State and, accordingly, proposed a two-pronged approach to determining “fair attribution.” First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Id. at 937, 102 S.Ct. at 2754. Lugar then examined the two counts of plaintiff’s complaint in light of its test. Count one asserted that Virginia’s prejudgment attachment statute was constitutionally defective. Count two simply alleged plaintiff’s deprivation came about by defendant’s unlawful acts. The Court considered count two first and held that it failed to satisfy the first prong because it did not charge conduct that could fairly be attributed to any state governmental decision or rule. Rather, the Court specifically asserted that defendants invoked the state statute in abuse of and in direct contravention to relevant state policy. Id. at 940,102 S.Ct. at 2755. Thus, the Court held that count two failed to assert a valid § 1983 claim because it did not satisfy the state action or first prong of the fair attribution test. The Court then examined count one and found that it met the first prong of the fair attribution standard. As the Court noted: “While private misuse of a state statute [i.e., count two] does not describe conduct that can be attributed to the State, the procedural scheme created by the statute [i.e., count one] obviously is the product of state action.” Id. at 941, 102 S.Ct. at 2756. It next applied the second prong of the test to the allegations in count one. It observed that a private party’s “joint participation” with state officials in the seizure of disputed property will suffice to characterize that party as a state actor. Id. at 941, 102 S.Ct. at 2756. Lugar held that defendants were such joint participants and, therefore, state actors because they “in-vok[ed] the aid of state officials to take advantage of state-created attachment procedures.” Id. at 942, 102 S.Ct. at 2756. Ill Eric Dahlberg likens his case to Lugar and urges that the Court’s holding there supports his § 1983 claim. The deprivation of Dahlberg’s federally-protected right to liberty by his overnight imprisonment is not questioned. Accordingly, we turn to the two part “fair attribution” test to determine whether his rights were deprived under color of state law. As the ensuing analysis demonstrates, neither prong of the “fair attribution” test has been satisfied. As previously stated, the state is responsible for violation of plaintiff’s constitutional rights whenever that deprivation is caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. 457 U.S. at 937, 102 S.Ct. at 2754. The Supreme Court read count one of Lugar’s complaint to allege that Virginia’s prejudgment attachment statute was procedurally defective under the Fourteenth Amendment. Id. at 941, 102 S.Ct. at 2756. The deprivation of Dahlberg’s federally-protected rights is not “caused” by the exercise of some right created by the State in the same sense as was Lugar’s. A private party’s misuse of New York’s Judiciary Law that causes plaintiff to be imprisoned overnight is not fairly attributable to New York State. In Lugar the state statute was itself constitutionally defective. Since a State is charged with the responsibility of assuring that its laws are constitutional, a constitutionally defective statute is plainly a product of state action. As such, it was deemed in Lugar to have “caused” or “permitted” defendant to seize plaintiff’s property. Plaintiff has not here alleged that New York’s procedure for notice and adjudication of contempt is constitutionally defective. Thus, the present case does not fall within the Lugar rationale for state action. In fact, the instant case is more closely related to count two of Lugar’s complaint that asserted that the deprivation of property resulted from private party defendants’ “ ‘malicious, wanton, willful, opres-sive [sic], [and] unlawful acts.’ ” Id. at 940, 102 S.Ct. at 2756. This allegation did not ascribe conduct to any state governmental decision or action. Instead, it implicitly legitimized the state statute and complained only that the private party defendants had run afoul of the statute. In the words of the Court: “That respondents invoked the statute without the grounds to do so could in no way be attributed to a state rule or a state decision . . . . [P]rivate misuse of a state statute does not describe conduct that can be attributed to the State . . . .” Id. at 940-41, 102 S.Ct. at 2756. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (abuse of authority doctrine). Private misuse of a state statute is precisely what plaintiff has alleged here. Dahlberg’s complaint accuses his ex-wife’s lawyers of intentionally or negligently violating the notice provisions of New York Judiciary Law § 756 and thereby causing his subsequent arrest and imprisonment. It is one thing to hold a State accountable for the unconstitutional acts of its legislature, but quite another to charge that State with responsibility where private parties abuse an otherwise valid state law. In the latter case, the State does not sanction such abuse, nor can it prevent it any more than it can stop a private party from committing a crime or tort. Thus, the deprivation of Dahlberg’s rights was not caused by the exercise of some right or privilege created by the State. Nor can the conduct complained of subject defendants to Section 1983 liability for their actions based upon a rule of conduct imposed by New York. See Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) (custom alone is insufficient to turn private conduct into state action). As the Supreme Court held in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the decision to discriminate must be ascribed to a governmental decision, so a private club’s racially restrictive policies do not constitute state action subjecting the club to constitutional restraint. Thus, since defendants’ actions were not encouraged by any rule of New York — regardless of whether they were intentional or malicious — they may not be viewed as caused by a rule of conduct imposed by the State or a person for whom the State is responsible. Therefore, they are not attributable to the State. Plaintiff challenges this conclusion by asserting that there are other ways of establishing state responsibility. Specifically citing numerous cases including Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), and Howerton v. Gabica, 708 F.2d 380 (9th Cir.1983), he attempts to characterize his situation as indistinguishable from them. We agree that state responsibility, the first prong of the fair attribution test, does not inevitably turn on the presence or absence of an unconstitutional state law. Lugar makes this clear. Nonetheless, we reject Dahlberg’s contention that this case satisfies the state responsibility requirement in some other form. Dennis v. Sparks is quite different from the case at bar. There the “action under color of state law” requirement of § 1983 was met where plaintiff’s complaint alleged a conspiracy between the private party defendants and a state official. 449 U.S. at 28, 101 S.Ct. at 186. Dennis never discussed Fourteenth Amendment state action or fair attribution of state responsibility. In fact, it was decided nearly two years prior to Lugar, which Dahlberg concedes controls. Even assuming that the Court in Dennis implicitly found state action and state responsibility, such a finding does not mandate a similar result here. The Lugar test for state responsibility is satisfied where the deprivation of plaintiff’s rights is caused “by a rule of conduct imposed by the State or by a person for whom the State is responsible.” 457 U.S. at 937, 102 S.Ct. at 2754. In Dennis, the judge who allegedly accepted a bribe and conspired with private parties was obviously a “person for whom the State is responsible.” This is also true with respect to the state judges involved in the Dahlberg contempt proceedings. The difference is the presence in Dennis and the absence here of an alleged bribe and conspiracy, before such intentional misconduct can be considered a “rule of conduct.” Where a state judge’s single, isolated error in signing a defective order was due to oversight or negligence, such nonfeasance may hardly be characterized as a rule. A series or pattern of similar negligent acts might arguably establish a rule of conduct for which the State would be responsible. But Dahlberg has not alleged a pattern of behavior, and we do not assume that a state court judge in this or any other case makes a practice of signing defective orders. Moreover, plaintiffs in § 1983 cases need not allege a pattern of behavior in cases like Dennis where the state official acts intentionally rather than negligently. The reason is plain. Given an actor’s presumed control over his intended actions, one intentional act can signify the presence of a “rule of conduct,” even though in its infancy. Thus, there is good reason for an actor to be held responsible for his intentional behavior, as opposed to his mere inadvertence. And, responsibility is of course a touchstone of fair attribution. A more difficult problem is presented by the Ninth Circuit’s decision in Howerton v. Gabica, supra, 708 F.2d 380. There, defendant landlords undertook to evict plaintiff tenants from a rented trailerhouse. In the process defendants prepared a three-day eviction notice that was allegedly defective under state law. They subsequently sought the aid of local police who, together with defendants, evicted the plaintiffs, despite plaintiffs’ assertion to the police that the eviction notice unlawfully failed to state the amount of rent due and permit payment of that amount as an alternative to vacating. Plaintiffs also contended that the eviction did not comply with the state’s unlawful detainer statute that requires a court order prior to eviction. The Ninth Circuit ruled that plaintiffs ■ had stated a cause of action against the landlords under § 1983. In particular, it held that the action taken by the landlords was “under color of state law” since it involved significant state involvement. 708 F.2d at 382. Taking note of Lugar, the Howerton court determined that where “police involvement becomes increasingly important, repossession by private individuals assumes the character of state action.” Id. at 383. Consequently where private individuals invoke the authority of state officials, such as the police, to put the weight of the State behind their decision to evict, they fall within the “abuse of authority” doctrine. Id. at 384 n.9 (citing Lugar v. Edmondson Oil Co., 457 U.S. at 940, 102 S.Ct. at 2756). See Monroe v. Pape, supra. While the circumstances in Howerton and the instant case are similar, we observe that although the Howertons called the police officer’s attention to the defects in the notice, the police proceeded to enforce the eviction anyway, even to the extent of one officer visiting the Howertons’ residence to tell them the defendant’s eviction procedures were proper and that they should quit the premises. Id. at 381. That is quite unlike the conduct of a judge who unknowingly signs a defective order that has been prepared and submitted to him by an attorney. Hence, regardless of their similarities, we perceive factual distinctions in the circumstances of the two cases. Again, the question of state involvement is always a factual inquiry and, “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). ÍV Despite the conclusion that here there is no state action, we think it necessary in light of the alluded to uncertain cross-currents that envelope state action to discuss our reasons for also concluding that defendants are not state actors. Bearing in mind that it requires both state action and a state actor for.plaintiff to state a viable cause of action under § 1983, a failure sufficient to allege either defeats plaintiff’s cause. While Ellen Dahlberg’s lawyers are not state officials, the question nonetheless remains whether under any one of several theories they may still be considered state actors. Aside from the field of prejudgment attachment, several theories have evolved that when properly- alleged suffice to tie a private person so closely to governmental actions that a court will hold the private actor’s conduct subject to suit for violating another’s constitutional rights. Thus, a private party may be held a state actor when the complained of conduct results from a state agent’s encouragement or command, the state and private actor jointly participate in depriving plaintiff of his rights, the granting of benefits to a private actor by the state inseparably links them together, or the private actor undertakes to perform activities ordinarily exclusively engaged in by government. As the ensuing discussion demonstrates none are applicable to the claims before us. First, nothing before us suggests that the state judicial officers commanded or encouraged defendants in their decision to invoke state process against plaintiff. Second, the joint participation theory — adopted as the rationale in Lugar — does not fit this case when it is compared to those cases finding state action on that theory. For example, the government agent and the thugs laying in wait for the victims in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1965), carried out a deliberate, previously agreed upon plan. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the state agent’s joint participation with Kress employees was found to constitute a conspiracy or meeting of the minds. The complaint in this case simply alleges that Ellen Dahlberg and her attorneys acted “in concert with state and county officials” to imprison plaintiff. No claim is made — and on the facts in the record none could be — that the different state judges actually entered into a conspiracy or had a meeting of the minds with the attorney defendants as in Price and Adickes to deprive plaintiff of his liberty. See Dennis v. Sparks, supra, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185. Further, the mere invocation by defendants of New York's legal procedures does not constitute joint participation so as to satisfy the statutory requirement under § 1983 that there be a state actor. Lugar at 939 n.21, 102 S.Ct. at 2755 n.21. While entanglement by the private actor with the State may lead to a conclusion that there is a conspiracy or meeting of the minds between private parties and state officials to engage in conduct to deprive a plaintiff of constitutional rights, the action of the state court judges and the sheriff in this case do not establish any meeting of the minds or intent to conspire with defendants to imprison plaintiff. Third, there is no basis for finding an inseparable linking or symbiotic relationship arising from any benefits granted by the state to these defendants as in Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Finally, the exclusivity doctrine has no application here. That doctrine applies where the private party undertakes to perform a function exclusively performed by government, for example, elections, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), or running a company-owned town, see Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). More traditional business activities, like the operation of a public utility, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), are not so exclusive. Thus, in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), the use of state law patterned on the Uniform Commercial Code as a method of dispute resolution between a debtor and creditor was private activity. In Flagg Brothers the defendant warehouseman who had a lien on plaintiff’s goods in his possession arising from unpaid storage charges sold plaintiff’s property. The Supreme Court held it unnecessary to examine whether the law itself or the actions of the warehouseman violated due process because defendant’s actions were entirely private. Similarly, the parties’ matrimonial dispute in New York involving unpaid alimony and attorneys’ fees are not matters exclusively relegated to the State. On the contrary, this kind of dispute is ordinarily resolved by institution of an action between private parties. Therefore, the exclusivity theory does not transform defendants into state actors. Since none of these theories provides a ground for holding defendants to be state actors, we conclude that they are not. V In concluding that plaintiff failed to state a cause of action under 42 U.S.C. § 1983 because there was no demonstration either of state action or a state actor, we do not mean to suggest that plaintiff is without a remedy. The incidents alleged may well support a tort action in state court. We simply conclude that the events recounted here do not provide a basis for a federal claim. . Section 756 states, in pertinent part: An application to punish for a contempt punishable civilly may be commenced by notice of motion returnable before the court or judge authorized to punish for the offense, or by an order of such court or judge requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense. ... The application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or type written in a size equal to at least eight point bold type: WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT N.Y.Jud. Law § 756 (McKinney Supp.1983). . “An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge." N.Y.Jud. Law § 761 (McKinney Supp. 1983). . We recognize that the concept encompassed by "state action” and "state actor” overlap. They collapse into each other when the claim of a constitutional deprivation is directed against a public official. The two requirements diverge only when the claim is directed against a private party. . The use of the word "responsibility” does not imply that actions taken pursuant to state authority will impose legal liability upon the State, but the term means, as Webster’s first definition states, only that the deprivation of plaintiffs federally-protected rights is "caused” by the exercise of some right or privilege created by the State. . Sheriff Stoddard is no longer a party to this action since the cause of action against him, pursuant to Fed.R.Civ.P. 41(a), was dismissed by stipulation and order filed February 2, 1984. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:

songer_appel2_1_3

F

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. NATIONAL BRICK & SUPPLY COMPANY, Inc., and Hudson Supply & Equipment Company, Appellants, v. William E. BAYLOR et al., Trustees, Mt. Joy Baptist Church, Appellees. Abraham GRUNSTEIN et al., Partners, t/a Columbia Building Products Company, Appellants, v. William E. BAYLOR et al., Trustees, Mt. Joy Baptist Church, Appellees. Nos. 17760, 17761. United States Court of Appeals District of Columbia Circuit. Argued Oct. 29, 1963. Decided Nov. 14, 1963. Mr. Mark P. Friedlander, Jr., Washington, D. C., with whom Messrs. Mark P. Friedlander and Blaine P. Friedlander, Washington, D. C., were on the brief for appellant National Brick & Supply Co. Inc., in No. 17,760, argued for all appellants. Mr. George H. Windsor, Washington, D. C., with whom Mr. George E. C. Hayes, Washington, D. C., was on the brief, for appellees. Mr. Dexter M. Kohn, Washington, D. C., was on the brief for Hudson Supply & Equipment Co., appellant in No. 17.760. Mr. George Greenberg, Washington, D. C., was on the brief for Columbia Building Products Co., appellant in No. 17.761. Mr. David S. Scrivener, Washington, D. C., entered an appearance for appellees, Scrivener and Crowell. Before Prettyman, Senior Circuit Judge, and Wilbur K. Miller and Burger, Circuit Judges. PER CURIAM. In these cases the appellants, who were subcontractors on a construction project which was abandoned by the prime contractor before completion, seek to enforce mechanic’s liens upon the alleged balance of the contract price which remained unexpended after the owner had completed the work, as permitted by § 38-104, D. C. Code (1961). These cases are here for the second time. Reference is made to our opinion on the first appeal for a statement of the facts and issues. The owner claimed that, in finishing the work after the prime contractor abandoned it, it had been necessary to expend more than the unpaid balance of the contract price at the time of abandonment, as a result of which there was no fund in which the subcontractors were entitled to share. The latter claimed that the owner had erroneously included in its computation the sum of $4,375 allegedly paid to another subcontractor for replacing equipment he had previously furnished and installed, but later had tortiously removed; that, with that amount eliminated, there was more than enough left in the owner’s hands to satisfy their liens which aggregated about $4,000. We held, inter alia, that any amount paid the wrongdoing subcontractor for doing what he was already bound to do could not be regarded as a part of the expense of finishing the work. On remand, the District Court had the task of determining the amount, if any, paid by the owner to the wrongdoer. After hearing evidence the court held that the amount so paid was $800 instead of $4,375 as claimed by the appellants; and that, as a result, the unexpended portion of the contract price in which the claiming subcontractors are entitled to share ratably is $660. Judgment having been entered accordingly, the lienholders again appeal. Although there was conflict in the evidence, it contained support for the findings of the trial judge and therefore we cannot say the findings are clearly erroneous. Hence the judgment appealed from must be upheld. Affirmed. . National Brick & Supply Co. v. Baylor, 112 U.S.App.D.C. 73, 299 F.2d 454 (1962). Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:

songer_initiate

B

What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. HALL v. UNITED STATES. No. 13871. United Slates Court of Appeals Eighth Circuit. June 9, 1950. Frank J. O’Leary, Kansas City, Mo., for appellant. Richard H. Musser, Assistant United States Attorney, Kansas City, Mo. (Sam M. Wear, United States Attorney, Kansas City, Mo., was with him on the brief), for appellee. Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges. SANBORN, Circuit Judge. LeRoy Neeley and Milton Hall were charged, by an indictment, with having, on June 24, 1948, stolen a case of Camel cigarettes from the Missouri Pacific Railroad docks at Kansas City, Missouri, while the cigarettes were moving in interstate commerce as a portion of a shipment from R. J. Reynolds Tobacco Company, Kansas City, Missouri, to Rohlfmg & Company, Leavenworth, Kansas. The indictment was based on § 409, Title 18 U.S.C., now § 659, Title Both defendants were, on June 24, 1948, employees of the Missouri 18 U.S.C.A. Pacific Railroad Company, working on its docks in Kansas City, Missouri. Neeley entered a plea of guilty. Hall stood trial and was convicted by a jury. The court had denied his motion for a directed verdict of acquittal. From the judgment and sentence entered upon the verdict, Hall has appealed. , The grounds upon which Hall seeks reversal are: (1) lack of evidence that the case of cigarettes allegedly stolen by him from the railroad docks was from the interstate shipment referred to in the indictment; (2) the failure of the court to direct the jury to disregard an improper remark of the prosecutor made during the cross-examination of one of Hall’s character witnesses ; and (3) the instruction of the court that Hall’s certificate of Honorable Discharge from the Army, which had been received in evidence without objection, had no probative force. It is not a federal offense to steal a case of Camel cigarettes from the Missouri Pacific Railroad docks in Kansas City, Missouri, unless the theft is from a shipment moving in interstate commerce. It was therefore incumbent upon the Government to prove not only that Hall stole or participated in the stealing of a case of Camel cigarettes from the docks, but that the case stolen was from the interstate shipment specified in the indictment. The evidence of the Government established that, at about four- or five o’clock in the afternoon of June 24, 1948, there was delivered at the railroad docks in Kansas City a shipment of 15 cases of Camel cigarettes consigned by R. J. Reynolds Tobacco Company to Rohlfing & Company, Leavenworth, Kansas; that the carrier received and accepted this shipment; that in transferring the shipment to a platform truck, the railroad checker found that one of the cases “was partly open at the tip”; that he directed that the entire shipment be taken to the Cooper Shop at the docks for repair of the one case; that the shipment came to the Cooper Shop.on a truck; that the split seam of the one defective case was mended with white tape, and it was put back on the truck; that the shipment was turned over to Jesse Childs, a “line-up man,” whose duty it was to place the truck in position to be hauled by a tractor man to the location on the docks for loading the shipment into the car destined to Leavenworth; that the car, when loaded, was sealed, apparently between 5 and 6 o’clock p. m.; that it arrived in Leavenworth the following morning with seals intact; and that the shipment of cigarettes was then found to be one case short. This evidence was concededly sufficient to support a finding that the missing case of cigarettes had not been loaded into the car at Kansas City. Two apparently disinterested Government witnesses testified that, at about 5 :35 p. m. on June 24, 1948, they saw Neeley hand or throw a case of Camel cigarettes from the dock to Hall, who was on the ground, and who put the case in his automobile, parked nearby, and drove away. Neeley testified for the Government. On direct examination, his testimony was, in part, as follows: „ “Q. Now, referring your recollection to June 24, 1948 what did you and Milton Hall do together that day? A. Well, some cigarettes came open there and so, they were setting there when I went up there to put the stuff down on the floor there, so I seen them there. “Q. Where were they setting? A. On the jack [platform truck], “Q. About where from Gate 29? A. Oh, maybe about five feet. “Q. From Gate 29? A. Yes. So he says to me, he says, ‘Something is coming up here. What can we do about it ? ’ I said ‘All right.’ He said, told me to hand him the carton, so I did.” Neeley also testified that Hall took the case of cigarettes and put it in his car, and a day or two later gave Neeley ten dollars as his share of the proceeds. On cross-examination, Neeley gave the following testimony : “Q. Now, tell us what he [Hall] said. A. Well, he said he had those cigarettes up there. He said there was some cigarettes up there, and he wanted me to give them to him, on this jack, and I gave them to him. “Q. Where was he when he told you that? A. In the freight house. * >}< * * * * “Q. And what did you do? A. Well, I walked up to him — I looked for them and found them. “Q. What did you find ? A. That case of cigarettes. “Q. Is that all you found? A. That is all. “Q. Just one case of cigarettes? A. Just one case of cigarettes.” There is no indication in Neeley’s testimony that he knew from what shipment the case of cigarettes he handed to Hall was taken, or that the case was broken or taped up, or that it bore any number indicating the car for which it was intended or had any marks showing its destination. Apparently, all that Neeley knew was that he took a case of cigarettes from a truck and handed it to Hall, at Hall’s request. Whether the truck contained 15 cases or one case cannot be determined from the record. The other two Government witnesses who testified to the theft said that they saw Neeley hand Hall a case of Camel cigarettes. Neither of them said anything about a broken case or a taped-up case, or furnished any information as to the shipment from which the case was taken. If Camel cigarettes were a rare commodity or if the evidence showed that the only cases of Camel cigarettes on the railroad docks at 5 :35 p. m. June 24, 1948, were the 15 cases destined to Leavenworth, an inference that the case stolen by Neeley and Hall was one of those 15 cases would, no doubt, be justified. We think, however, that the Government failed to prove that the cigarettes handed to Hall by Neeley were taken from the interstate shipment in suit. The situation in the instant cáse is analogous to that which resulted in a reversal in Cox v. United States, 8 Cir., 96 F.2d 41. While the evidence of the Government in the instant case is consistent with the theory that the theft was from the interstate shipment, it is not inconsistent with the theory that the theft was not from that shipment and was a State offense. There is another reason why there must be a retrial of this case, although the point is not specified or argued in the appellant’s brief. The court charged the jury as follows: “Now, as to the law of the case. If you shall find and believe from the evidence in this case that the defendant on or about the 24th of June, this year, 1948, willfully and unlawfully, knowingly and feloniously took a case of cigarettes from the station, from the loading docks in Kansas City, Missouri, the loading docks of the Missouri Pacific Railroad Company, then it would be your duty to return a verdict of Guilty in this case. As I have indicated to you, if there should be any doubt in your mind, if you should believe reasonably he did not do it, you should return a verdict for the defendant.” That instruction was obviously erroneous. Counsel for Hall took an exception to it at the trial, and assigned it as error in a motion for a new trial. The instruction was, as a practical matter, fatal to Hall’s defense, since the jury could hardly have found from the evidence that Hall had not participated in stealing a case of cigarettes from the railroad docks. This error in the court’s instructions is too plain and vital to be overlooked. See Ayers v. United States, 8 Cir., 58 F.2d 607, 609, and cases cited. The other points relied upon by the appellant need not be discussed. The questions raised by them are unlikely to recur upon a retrial of this case. The opinion of the Supreme Court in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, furnishes an adequate guide in dealing with the subject of character evidence. The judgment appealed from is reversed and the case is remanded for a new trial. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:

songer_circuit

F

What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Plaintiff-Appellee v. George S. CARTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. CITY PRODUCTS CORPORATION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. The PILSENER BREWING COMPANY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. John J. FELICE, Defendant-Appellant. Nos. 14721-14724. United States Court of Appeals Sixth Circuit. Jan. 9, 1963. William F. Snyder and Edwin Knachel, Cleveland, Ohio (Edwin Knachel, William F. Snyder, Marshman, Hornbeck, Hollington, Steadman & McLaughlin, Cleveland, Ohio, on the brief), for defendant-appellant Carter. Benjamin C. Boer, Cleveland, Ohio (Benj. C. Boer, Boer, Mierke, McClelland & Caldwell, Cleveland, Ohio, Sidney De Lamar Jackson, Jr., Baker, Hostetler & Patterson, Cleveland, Ohio, on the brief), for defendants-appellants City Products and Pilsener Brewing Co. Moses Krislov Cleveland, Ohio, P. D. Maktos, Washington, D. C. (Protagoras Dimitidos Maktos, C. Thomas Zinni, Boston, Mass., on the brief; Harry Weinstock, New York City, of counsel), for defendant-appellant John J. Felice. Philip Wilens, Washington, D. C. (Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, John F. Lally, Atty., Criminal Division, Dept. of Justice, Washington, D. C., on the brief), for plaintiff-appellee. Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges. O’SULLIVAN, Circuit Judge. This matter involves the appeals of two corporations and two individuals from judgments of conviction for violating § 302(a) and (b) of the Taft-Hartley Act (Title 29, U.S.C.A., § 186(a) and (b)). These sections make it a crime, in industries affecting commerce, for an employer to pay any money to an official of a union representing its employees and for such union official to accept the money. (§ 186(a) (b), Title 29, U.S.C.A.). Exclusions from the Act’s applicability are not relevant here. Defendant-appellant Pilsener Brewing Company operated a brewery in Cleveland, Ohio. It was a wholly-owned subsidiary of defendant-appellant City Products Corporation, whose main offices were in Chicago. Defendant-appellant George S. Carter was, at the time of the alleged offense, president and chief executive officer of Pilsener, as well as a member of its board of directors. He was also a vice-president of City Products. Defend" ant-appellant John J. Felice was, at the time involved, the president and general manager of Teamsters Union Local Nov 293, which was the bargaining representative of some of Pilsener's employees. City Products and Pilsener were engaged in an industry affecting commerce. An indictment returned December 16, 1960, in its first count, charged that on April 17, 1956, City Products, Pilsener, and George S. Carter unlawfully, wilfully and knowingly paid $4,500.00 to defendant Felice and, in its second count, that Felice unlawfully, wilfully and knowingly received such money from City Products, Pilsener and George S. Carter, all in violation of the mentioned statute. All defendants waived jury trial and the cause was tried to a United States District Judge sitting in Cleveland, Ohio. The District Judge found all defendants guilty as charged and imposed the following sentences: City Products and Pilsener were fined $10,000.00 and $4,500.00, respectively; George S. Carter was sentenced to 90 days in jail; and John J. Felice was sentenced to 90 days in jail and fined the sum of $4,500.00. The respective appellants assert varying grounds for reversal, but common to all is a claim that the evidence was not sufficient to support a finding of guilt. The factual story of this case, which for the most part is undisputed, is as follows. For some years prior to April, 1956, Carter, as president of Pilsener and Felice as head of the Teamster Local, participated in the labor negotiations between Pilsener and the Teamsters Union. Each signed the resulting bargaining agreements in their respective capacities for Pilsener and Teamsters. While Carter and Felice described their relationship as that of intimate and social friends, their association and acquaintance had beginning in labor negotiations in which they had both pai'ticipated. Sometime prior to April 17, 1956, Felice arranged to purchase two homes, one for himself and one for his son, who was vice-president of the Teamster local. The price to be paid for these houses was $79,000.00. Felice expected to finance such purchase by a mortgage on the houses being purchased as well as a mortgage on the home then owned by him. In addition to the proceeds of such mortgages, Felice was required to put up some cash. Felice told Carter of his contemplated acquisition of the new homes and said that he would likely need some cash to close the purchase. As testified by Felice, Carter replied, “If you do, see me.” Later Felice told Carter that he needed $4,500.00. Carter according to Felice, replied, “Give me a few days. See me at the office.” (Pilsener office) Carter’s account of these preliminary talks was that in telling Carter of his planned purchase, Felice said that “he might need a few thousand dollars for a short period of time” and “I said ‘all right’ or something to that effect.” Carter’s further testimony was that when later he was told of the amount needed, he stated to Felice, “All right. Will you give me a couple of days and I will see what I can do about it.” We mention these details because they bear on Felice’s claim, later discussed, that he did not know the source of the money he took, other than his claimed assumption that it came from Carter’s personal funds. Following the above talks, Carter, according to his testimony, called one William Zeidler at the Chicago office of City Products and told Zeidler that Felice wanted to borrow some money and asked whether “we should loan him the money.” The next day, again as stated by Carter, Zeidler called him back and said, “Go ahead, make the loan.” Zeidler, who was vice-president and treasurer of City Products, as well as secretary and director of Pilsener, denied approving the transaction as claimed by Carter. There was evidence that many transactions by Pilsener were cleared in advance with City Products. On April 16, 1956, Carter advised the controller of Pilsener, one Nero, that Pilsener was making a loan to Felice of $4,000.00. He advised Nero that a company check should not be used to transfer the funds, but that payment was to be made with an official bank check or in cash. Pursuant to such instructions, Nero issued Pilsener’s check for $4,000.00 to the Cleveland Trust Company and with it purchased a Cleveland Trust Company “official check” payable to the order of John Felice. On April 17, 1956, Nero delivered the above check and a blank promissory note to Carter who then advised that the amount should be $4,-500.00. Five hundred dollars was withdrawn from petty cash and given to Carter. Later that day, Felice arrived at the Pilsener office and was given the $4,000.00 check and $500.00 in cash. He signed a promissory note, which had been prepared by Carter. The note was payable to Carter and called for repayment of $4,500 ninety days after date, with interest at the rate of three percent per annum. Felice said there was no discussion as to when he was to repay the loan or the interest to be charged. He only - was aware of the amount of the note and that Carter’s name was on it. He said, “Our understanding was that when I got it I would pay him,” and that, “I told him that whatever interest he would charge, that I would take care of it.” In directing and completing the transaction, Carter told Pilsener’s controller, Nero, that the transaction was to be kept “confidential” and that no attempt should be made to collect the note; that he, Carter, “would handle it.”- The note to Carter was not endorsed by him to Pilsener, but was delivered to its controller, retained by it and entered on the company’s books under notes receivable. The $4,500 received by Felice was, as a part of the, cash required, delivered to the bank at which his purchase of the two houses was completed. Although carried as a note receivable on the company s books and appearing as past due after its maturity, no effort was ever made to collect it and in 1959 it was charged off. This was done by direction of the then officials of the Pilsener division of City Products, the Pilsener corporation having in June, 1956, been dissolved and its business thereafter carried on as the Pilsener Brewing Division of City Products. Notwithstanding such charge-off, it was not claimed as a bad debt deduction on the income tax return of City Products. Pilsener Brewing Division of City Products will also be referred to herein as Pilsener. Carter left the employ of Pilsener in 1958 and became associated with another brewery in Cleveland. Prior to his leaving Pilsener, and at the request of its auditors, Carter signed a paper reciting that although “not endorsed to the company for bona fide business reasons” the Felice note was the property of Pilsener. In 1959, when his 1956 tax return was under review, Felice advised Internal Revenue agents that the $4,500.00 received by him in 1956 was a loan obtained from Carter. In 1960, however, under advice of counsel, he consented to such amount being added to his 1956 income and paid the resulting tax deficiency. He testified that he argued the point with his attorney, but followed his advice in allowing its inclusion in his 1956 income. In 1960, when first asked by FBI agents about the transaction of 1956, Carter denied giving or making a loan of $4,500.00 to Felice. As a witness before the Grand Jury, he recanted such denial and told of making the payment to Felice, claiming that it was a bona fide loan to Felice from Pilsener. Felice testified that he assumed that the claimed loan was made to him from Carter’s own funds. Carter testified that he did not tell Felice that the money came from Pilsener and that Felice never made any inquiry as to its source. There was no direct evidence that Felice knew that the money paid to him came from Pilsener and a finding of such knowledge'had to rest upon circumstantial evidence. At no time in the intervening years between April, 1956, and 1960, did Felice do anything about paying the principal or the1 interest due on the money which he claimed he borrowed. There was no evidence that the interest payable on the note was ever reported as accrued income by Pilsener. Felice testified that on one occasion, the time and place of which he could not recall, he mentioned to Carter that he “would like to make some arrangement to pay back that money” and that Carter replied, “What are you worrying about? Have I asked you for it?” Carter could recollect no such conversation. Aside from this last mentioned conversation, neither Carter, Felice, nor anyone connected with City Products or Pilsener gave any explanation as to why no effort to collect or offer to repay this alleged loan was ever made. In the District Judge’s opinion finding all defendants guilty, he found as a factual conclusion that the payment of $4„-500.00 to Felice was not a loan, stating' “That the defendants from the very beginning of this transaction did not look upon or intend this transaction to be a loan; that Felice never intended to repay the money received or any interest thereon; and that the defendants did not expect to be repaid.” The District Judge expressed his further opinion that even if the transaction were assumed to be a loan “the transaction constituted the payment and receipt of a thing of value and a violation of Section 186, Title 29, USCA.” We will discuss such of the asserted grounds for reversal as we consider require discussion under the subject headings and in the order following: 1. Would a bona fide loan violate the statute? The government asserts that even if the involved transaction was, in truth, a loan, the statute was violated. We cannot agree. The conduct proscribed by such statute (§ 302, Labor-Management Relations Act of 1947, § 186 U.S.C.A. Title 29) is for an employer “to pay or deliver, or to agree to pay or deliver, any money or other thing of value” to a representative of its employees’ union and for such a union representative “to receive or accept, or to agree to receive or accept, from the employer * * * any money or other thing of vahee.” Were we here construing a statute relating to civil rights or remedies, it might be permissible to spend time considering whether, by construction, the word “loan” could be added to actual words employed. Such a meaning, however, does not emerge with the clarity which should be found in criminal statutes. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840, 849. We think it sufficient to refer to the language of Judge Martin, writing for this court in North American Van Lines, Inc. v. United States, 243 F.2d 693, 696, 697 (C.A.6, 1957). Citing decisions of the United States Supreme Court, we there said “Impossible standards of specificity are not required, but the language of the statute (charging a criminal offense) must convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” The statute here involved created a new offense not theretofore known to statute oy common law. The coverage of such a statute may not be extended beyond what clearly appears from its explicit language. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322; McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816. We do not find, in the language employed, a Congressional intent to make a bona fide loan between parties described in the statute a crime. Congress, itself, recognized that it had not clearly expressed such intent when, in 1959, it amended the involved sections of the Act to specifically cover loans and lending (Sec. 505 of the Labor-Management Reporting and Disclosure Act of 1959). Such amendment was Congressional recognition that loans had not theretofore been covered. United States v. Chase, 135 U.S. 255, 262, 10 S.Ct. 756, 34 L.Ed. 117; United States V. Curtis, 107 U.S. 671, 676, 2 S.Ct. 507. 27 L.Ed. 534; Fisher Flouring Mills Co v. United States, 270 F.2d 27, 28 (C.A.9, 1959). Unless there was evidence from which the trier of the facts, the District Judge, could find, beyond a reasonable doubt, that the clothing of the alleged loan was a sham to hide an outright payment, the convictions must be set aside. 2. Was the alleged loan, in true fact, an outright payment? We have, in some detail, recited the facts disclosed by the evidence because we believe such recital provides the answer to the question raised. Proof of criminal conduct may be made out by circumstantial evidence. United States v. Comer, 288 F.2d 174, 175 (C.A.6, 1961); Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150. While the circumstantial proof, with the inferences drawn therefrom, must be sufficient to warrant a finding of guilt beyond a reasonable doubt, such proof need not, as claimed by appellant, be such as to exclude every reasonable hypothesis other than that of guilt. Holland v. United States, supra, p. 139, 75 S.Ct. 137; United States v. Thomas, 6 Cir., 303 F.2d 561, 562, 563. In determining whether the evidence was sufficient to withstand a motion for acquittal, the evidence must be viewed in the light most favorable to the prosecution. This rule applies to a case tried to a District Judge as well as to a case tried to a jury. Battjes v. United States, 172 F.2d 1, 5 (C.A.6, 1949). While there was some disagreement between the witnesses on some details, the facts which we recite could be found to be true. These facts, plus justifiable inferences drawn therefrom, were, in our opinion, sufficient to justify the District Judge’s finding that, as a matter of fact and beyond a reasonable doubt, the alleged loan was in reality an outright payment to Felice, known and intended to be such by the defendants Pilsener Brewing Co., Carter and Felice. This was so at the close of the government’s case, as well as at the close of proofs. The motions for acquittal, made at these times by defendants Carter, Felice and Pilsener Brewing Company, on the ground that the government’s proof was insufficient to permit a finding that the payment to Felice was not a loan, were properly denied. We exclude defendant City Products from our holding in this regard because, for reasons later discussed, we find it necessary to reverse the conviction of that corporation. 3. Guilt of City Products Corporation. City Products owned all of the stock of its subsidiary, Pilsener Brewing Company. It had no employees, however, who were members of Teamsters Local 239. The indictment, in effect, charged that on or about April 17, 1956, City Products, an employer of employees, paid the sum of $4,500.00 to a union representative of “the aforesaid employees.” No such case was proved against City Products. City Products had no employees who could be said to be “the aforesaid employees” described in the indictment. City Products acquired the assets of Pilsener Brewing at the time the latter was merged with the parent. Such acquisition would not make it chargeable, as a principal, for a crime previously committed by Pilsener or Carter. Neither does the conduct of City Products subsequent to April 17, 1956, in failing to press for repayment of the spurious loan made to Felice, or its act in charging off the Felice note, render it guilty of the charged offense. Whether such conduct would render City Products guilty of being an accessory after the fact to Carter, Felice and Pilsener, is not before us. No such charge under Section 3, Title 18, U.S.C.A., was made in the indictment. The government urges, however, that we should hold that City Products was an employer of Pilsener’s union member employees, citing our decision in N. L. R. B. v. Swift & Co., 127 F.2d 30 (C.A.6, 1942) and other cases involving the enforcement of various provisions of the National Labor Relations Act. We find none of these cases apposite here. It is further argued that because of testimony by Carter that he got the permission of Zeidler, secretary of City Products, to make the alleged loan to Felice and because the District Judge, despite Zeidler’s denial, found as a fact that Carter “was authorized and directed by William Zeidler, a proper official of the City Products, to engage in the tram-action here in dispute, prior to the delivery of the money to Felice,” City Products is guilty as a principal. It is clear, however, that the only evidence of Zeidler’s participation in the events occurring prior to and at the time of the alleged offense was his consent to Pilsener Brewing Company making a loan to Felice. We have held that a bona fide loan to a union representative was not proscribed by the statute, as it read in 1956. We do not believe the evidence would justify an inference that Zeidler, at the time he gave his consent, knew that such loan was but a cover for an illegal payment to Felice. City Products’ motions for acquittal should have been granted. This disposition of City Products’ appeal makes it unnecessary to discuss other errors assigned by it. 4. Criminal responsibility of the corporation, Pilsener Brewing Company. The indictment was brought under Section 186(d), Title 29, U.S.C.A., which provides that “any person who wilfully violates any of the provisions of this Section, etc., * * * ” shall be guilty of a crime. Defendant Pilsener urges that under the facts of this case it, a corporation, cannot be held criminally responsible for the single criminal act of its president, George S. Carter. We will not here enter into extended discussion of the interesting subject of criminal responsibility of corporations. While concise and dogmatic rules cannot be distilled from the decisions, the uncertainties that long attended this subject have been cleared away to the extent that in this day we know that a corporation, through the conduct of its agents and employees, may be convicted of a crime, including a crime involving knowledge and wilfulness. New York Central & Hudson River Railroad Company v. United States, 212 U.S. 481, 29 S.Ct. 304, 53 L.Ed. 613; United States v. Union Supply Company, 215 U.S. 50, 55, 30 S.Ct. 15, 54 L.Ed. 87; United States v. Illinois Central R. Co., 303 U.S. 239, 244, 58 S.Ct. 533, 82 L.Ed. 773; United States v. Nearing et al., 252 F. 223, 231 (S.D.N.Y.1918); Continental Baking Company v. United States, 281 F.2d 137, 149, 150, 151 (C.A.6, 1960); 10 Fletcher Cyc. Corporations, § 4944, p. 873 (1961 Edition). It is essential, however, to corporate guilt, that its officer’s or agent’s illegal conduct be related to and done within the course of his employment and have some connection with the furtherance of the business of such corporation. Writing for this court in Continental Baking Company v. United States, supra, Judge Weick said: “This question of corporate responsibility for the acts of an agent is a most troublesome one. It involves issues of ‘authority’ and ‘acts within the scope of employment.’ The language of the decided cases varies in many instances, and seemingly different theories of corporate responsibilities can be rationalized. However, when the decisions are viewed as an entirety, a common denominator appears. “There is an officer or agent of a corporation with broad express authority, generally holding a position of some responsibility, who performs a criminal act related to the corporate principal’s business. Under such circumstances, the courts have held that so long as the criminal act is directly related to the performance of the duties which the officer or agent has the broad authority to perform, the corporate principal is liable for the criminal act also, and must be deemed to have ‘authorized’ the criminal act.” (citing cases) 281 F.2d 149. In the case at bar, we believe that the authority of George S. Carter and the activity in which he was engaged at the time of the offense involved, brought criminal responsibility to the corporation of which he was president. As president, he was Pilsener’s chief executive officer with the general supervisory authority that attends such office. Aside from his implied authority as president, he was, in fact, the one who ran the company. He was described by the company’s controller as the one who issued the orders and directions and was “the sole official, boss of the Pilsener Brewing Company.” While Pilsener’s labor negotiations were carried on through a brewer’s association, Carter participated in such negotiations and customarily signed collective bargaining agreements with the Teamsters union for Pilsener. It is apparent that his association with Felice grew out of such labor negotiations. In today’s economy, it is a large and important part of the business: of any employer to carry on negotiations, with a union representing its employees. We think that it can be fairly inferred that in acceding to Felice’s request for money and providing such money out of the corporation’s funds, Carter, however illegal and misguided his actions were, did so in the course of his employment, with, and in furtherance of the business interests of, his company. Egan v. United States, 137 F.2d 369, 380 (C.A.8, 1943); Mininsohn v. United States, 101 F.2d 477, 478 (C.A.3, 1939). Proof of an actual benefit to the corporation in such circumstances is not essential to its. responsibility. Old Monastery Co. v. United States, 147 F.2d 905, 908 (C.A.4, 1945); cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 437; United States v. Empire Packing Co., 174 F.2d 16, 20 (C.A.7, 1949). In the recent case of Standard Oil Company of Texas v. United States, 307 F.2d 120 (C.A.5, 1962), a. corporate defendant’s conviction was reversed because there the illegal conduct of its agents was shown to be solely for the personal gain of such agents, directly contrary to the interests of their corporate employers. Such is not the case-before us. We are of the opinion, too, that Carter’s knowledge and wilfulness must be charged to Pilsener. The corporate person can only act and know through its officers, and the guilty knowledge and wilful conduct of its chief executive officer will be charged to the corporate person. United States v. Armour & Co., 168 F.2d 342, 344 (C.A.3, 1948); United States v. George F. Fish, Inc., 154 F.2d 798, 801 (C.A.2, 1946); CIT Corporation v. United States, 150 F.2d 85, 89, 90 (C.A.9, 1945); Zito v. United States, 64 F.2d 772, 775 (C.A.7, 1933). In Magnolia Motor & Logging Company v. United States, 264 F.2d 950, 953 (C.A.9, 1959), the wilful and knowing criminal act of a corporation’s president was held imputable to the corporation. We have considered the authorities relied upon by appellant Pilsener and are of the opinion that they are neither apposite nor controlling. 5. Was there a wilful violation of the statute? Under Subsection (d) of § 302 of the Act (§ 186(d) U.S.C.A. Title 29) wilfulness is a necessary ingredient of the crime charged. Felice said that he knew that the Taft-Hartley Act forbade his acceptance of money from an employer whose employees were members of the union of which he was president. Claiming that what he did was but a borrowing, he disclaims wilfulness. The District Judge found that what was done was not a loan, but was an outright payment and was so understood. Felice knew what he was doing and so his wilfulness is apparent. Carter disclaimed any knowledge of the relevant proscription of the Act in question. We do not think it necessary to a finding of wilfulness that it be shown that the one so charged had read the statute which makes his conduct illegal. As stated by Judge Learned Hand in American Surety Co. of New York v. Sullivan, 7 F.2d 605, 606 (C.A.2, 1925): “The word ‘willful,’ even in criminal statutes, means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.” Such language was quoted with approval by Judge Allen of' this court in Schmeller v. United States, 143 F.2d 544, 553 (C.A.6, 1944). In United States v. Ryan, 232 F.2d 481, the Second Circuit was considering, on remand from the United States Supreme Court, (350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335) the meaning of “wilfulness” as that word is used in the specific statute here involved (§ 186(d) U.S.C.A. Title 29). A payment by a corporate officer to the president of a union, of which the corporation employees were members, was involved. The court upheld the conviction of the union official by a District Judge who had, on the question of wilfulness, said, “In my opinion a wilful violation of section 186(b) is proved if it is shown that a ‘representative of any employees who are employed in an industry affecting commerce’ received or accepted money from the employer of such employees with knowledge (1) that he was receiving or accepting money, and (2) that the person who was giving him the money was an employer of employees that he represented.” United States v. Ryan, 128 F.Supp. 128, 133 (S.D.N.Y.1955). Felice argues that he did not know that the money came from Pilsener and therefore he did not wilfully receive it from an employer of members of his union. Aside from the fact that he knew that Carter, as its president, was the agent of Pilsener, (§ 2 of the Act provides that the term “employer” includes any person acting as an agent of the employer) , we are satisfied that the District Judge, as trier of the facts, could find from the evidence that Felice knew from whence came his money. When he asked Carter for it, Carter replied, “Give me a few days, see me at the office.” It was at the Pilsener office that Felice received the bank check (which obscured the source of the money) and the cash. Just why Carter would, from his own funds, give Felice $4,500 is difficult to understand. The District Judge could find that Felice knew what was going on. Any viewer of the conduct of Carter and Felice would, indeed, be on plausible grounds in believing that both of them knew that they were “about some shady business” in this transaction. We have stated above that the wilfulness of Carter is properly imputable to the Pilsener corporation and, therefore, hold that there was sufficient evidence from which wilfulness of the corporation could be found. 6. Did the District Judge err in denying Garter a separate trial? Carter’s motion for a separate trial was denied. He claims to have been prejudiced thereby. The granting or denial of such a motion, made pursuant to Rule 14, F.R.Cr.P. is within the discretion of the District Judge. In the absence of an affirmative showing of abuse of such discretion, a refusal of severance is not assignable as error. Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154; Bullock v. United States, 265 F.2d 683, 689 (C.A.6, 1959). We find no abuse of discretion in this regard. 7. Constitutionality of § 302(a) of the Act. Defendant Felice now asserts that subsection (a) of § 302 (§ 186(a) U.S.C.A. Title 29) is unconstitutional. We are not sure that we fully understand the basis of such claim. His brief on this point says: “The Congressional intention of Sections 302(a) and 302(b), prior to the 1959 amendment, was clearly to prohibit payments by an employer to a union representative. It was not intended that the prohibition reach sources other than the employer.” Such statement does not expose any constitutional infirmity, but rather confirms that the statute makes clear the conduct interdicted thereby. We read Felice’s argument which follows the above quoted statement as a contention that the statute’s constitutional infirmity is its alleged failure to adequately make known what persons would be considered agents or representatives of an employer. We find no such vice in the statute. In today’s industry, the majority of employers engaged in commerce are corporations who can act only through individuals who are their agents. Section 2 of the Act (§ 152 U.S.C.A. Title 29) provides that “the term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly.” It appears to us that a union representative would have little difficulty in recognizing the president of a corporation, whose employees are members of his union, as the corporation’s agent. In Ryan v. United States, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335, the Supreme Court held that the president of a union came within the term “representative of any employees.” We think that, conversely, the president and labor negotiator of a corporate employer would easily be known to a union representative as one from whom he should not accept the forbidden payment of money. Upon the remand to it of the Ryan case, the Second Circuit held that the statute here involved was not so-vague in its identification of a representative of employees as to be unconstitutional. United States v. Ryan, 232 F.2d 481, 482, 483 (C.A.2, 1956). The statute is not unconstitutional. 8. The District Judge’s ruling on evidence. We have considered errors claimed to have been made by the District Judge in admitting some evidence and exhibits offered by the government. For the most part, the admission of such evidence was within the discretion of the District Judge. There may have been one or two places where defense objections should have been sustained, but our consideration thereof persuades us that no prejudice came to the defendants by such rulings. None of the evidence so admitted established any essential links to the proof of the crime involved; it was but cumulative and corroborative. We hold that no such rulings affected any substantial rights of the defendants. (Rule 52(a) F.R.Cr.P.) Complaint is further made that during the presentation of the government’s case the District Judge reserved his rulings on various objections made by defense counsel. A typical instance of such situation was where a ruling was reserved as to whether evidence received would be admitted as to all defendants, or only one of them. At the close of the government’s case, the District Judge was asked to make rulings on such objections. He did not do so. On this appeal, however, counsel do not point to any instance where such failure to rule prejudiced any defendant. We have held that there was sufficient admissible evidence to sustain the convictions which we affirm. We find no reversible error in the District Judge’s rulings, or failure to rule, on evidentiary matters. This disposition of appellants’ complaint in the above regard does not indicate our approval of a trial judge’s practice of repeated postponing of decisions on evidentiary matters by reserving a ruling thereon. (Not the situation here.) The burden of trial counsel should not be made heavier by such practice. Counsel should, with reasonable promptness, be informed by the judge’s ruling as to what further proof may be needed to sustain his case; where he represents a defendant he should not be required to go forward with his own proofs or attack the sufficiency of his opponent’s case until he knows just what case his opponent has made. There may arise exigencies providing exceptions to the foregoing, but it is a good general rule to be followed in jury and non-jury cases, (see discussion Yol. 1, Wigmore § 19, p. 348). 9. Enforcement of judgment against Pilsener. We do not think any problem of enforcement of the fine against Pilsener is presented by the fact that its indictment, conviction and sentence came after it had been merged into its parent, City Products. Both City Products and Pilsener were Ohio corporations. By virtue of § 1701.88, Page’s Ohio Revised Code, Supp., and the holding of the United States Supreme Court in Melrose Distillers, Inc. v. United States, 359 U.S. 271, 79 S.Ct. 763, 3 L.Ed.2d 800, a method of enforcing the sentence against Pilsener may be found. The judgments against Pilsener Brewing Company, George S. Carter and John J. Felice are affirmed; the judgment of conviction of City Products Corporation is reversed with direction to enter a judgment of acquittal. . “(a) It shall be unlawful for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees who are employed in an industry affecting commerce. “ (b) It shall be unlawful for any representative of any employees who are employed in an industry affecting commerce to receive or accept, or to agree to receive or accept, from the employer of such employees any money or other thing of value.” Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:

sc_adminaction

117

What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. ALABAMA PUBLIC SERVICE COMMISSION et al. v. SOUTHERN RAILWAY CO. No. 146. Argued February 27-28, 1951. Decided May 21, 1951. By special leave of Court, Merton Roland Nachman, Jr., Assistant Attorney General of Alabama, pro hac vice, and Richard T. Rives argued the cause for appellants. With them on the brief was Si Garrett, Attorney General. A. A. Carmichael, then Attorney General, and Wallace L. Johnson, then Assistant Attorney General, were also on a brief with Mr. Rives. Charles Clark argued the cause for appellee. With him on the brief were Marion Rushton, Earl E. Eisenhart, Jr., Sidney S. Alderman and Jos. F. Johnston. Mr. Chief Justice Vinson delivered the opinion of the Court. This case was argued with No. 395, decided this day, ante, p. 341, and brings the same parties before the Court. This proceeding arises out of appellee’s efforts to discontinue operation of passenger trains Nos. 11 and 16 operated daily between Birmingham, Alabama, and Columbus, Mississippi, a distance of approximately 120 miles mainly within Alabama. Alleging that the trains are little used and produce revenues far below their direct operating expenses, appellee applied to the Alabama Public Service Commission on September 13, 1948, for the permission to discontinue required by Alabama law. Over a year later, and before any action on the application had been taken by the Alabama Commission, the Interstate Commerce Commission ordered a reduction in the interstate and intrastate operation of coal-burning passenger locomotives to prevent undue depletion of coal reserves during a national coal strike. In response to the I. C. C. order, appellee discontinued service on a number of its trains, including trains Nos. 11 and 16. When the I. C. C. order was rescinded, other trains were restored to operation but appellee refused to restore the financially costly operation of trains Nos. 11 and 16, at least until the Alabama Commission granted a hearing upon its application for permanent discontinuance. An impasse developed and the Alabama Commission entered an order in which it refused to hear evidence proffered by appellee, threatened to delay any hearing on the application until appellee restored the trains, found ap-pellee in contempt of the Commission and called appel-lee’s attention to a provision of the Alabama Code providing penalties for the violation of an order of the Commission. On December 6, 1949, the day after entry of this order, appellee filed its complaint in the District Court alleging that requiring continued operation of trains 11 and 16 would confiscate its property in violation of the Due Process Clause of the Fourteenth Amendment. It prayed for an injunction restraining appellants from enforcing those laws of Alabama, including penalty provisions, which prevented appellee from discontinuing those trains. A temporary restraining order was issued. In the court below and in this Court, appellants have argued that a federal court should not interfere with a state’s imposition of penalties to punish defiant disregard of its regulatory laws. Beal v. Missouri Pacific R. Corp., 312 U. S. 45, 51 (1941); Wadley Southern R. Co. v. Georgia, 235 U. S. 651, 662 (1915). Compare Western & Atlantic R. Co. v. Georgia Public Service Commission, 267 U. S. 493, 496 (1925). Appellee, on the other hand, emphasizes the Commission’s delay in passing upon its application to discontinue the financially burdensome service as being so long-continued and unreasonable as to permit the intervention of a federal court before a decision by the Commission. Smith v. Illinois Bell Telephone Co., 270 U. S. 587 (1926). Though these arguments were relevant when the temporary restraining order was issued, we are called upon to review only the final decree, cf. Shaffer v. Carter, 252 U. S. 37, 44 (1920), and do not find it necessary to pass upon such contentions in view of the additional developments occurring prior to the entry of the final judgment below. The Commission did hold a hearing on December 8, 1949, in Fayette, Alabama, one of the communities affected by the discontinuance of service, and, on January 9, 1950, entered an order denying permission to discontinue operation of trains Nos. 11 and 16 on the grounds that a public need exists for the service and that appellee had not made a sufficient effort to reduce losses through adoption of more economical operating methods. The pleadings in the court below were amended in light of the Commission’s order of January 9, 1950, and the final judgment entered by the three-judge District Court was based upon a finding that enforcement of that order would be contrary to the Fourteenth Amendment. 88 F. Supp. 441 (1950). Appellee challenges the validity of an order of the Alabama Public Service Commission, but did not invoke the adequate state remedy provided for review of such orders. Therefore, as this case comes to us, it is governed by our decision in No. 395, decided this day, ante, p. 341. Accordingly, the judgment of the District Court is Reversed. Mr. Justice Frankfurter and Mr. Justice Jackson concur in the result for the reasons set forth in their opinion in No. 395, Alabama Public Service Comm’n v. Southern R. Co., ante, p. 351. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:

songer_appel2_1_4

J

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. The FIRST NATIONAL BANK OF CHICAGO, a National Banking Association, Plaintiff-Appellee, v. Edward M. PENDELL, Defendant-Appellant. No. 80-2158. United States Court of Appeals, Fifth Circuit. Unit A July 24, 1981. Davis & Turlington, Inc., David T. Tur-lington, J. Walter Park, IV, Law Offices of Joseph E. Brodigan, Joseph E. Brodigan, San Antonio, Tex., for defendant-appellant. Howard P. Newton, San Antonio, Tex., for plaintiff-appellee. Before BROWN, GOLDBERG and AINS-WORTH, Circuit Judges. PER CURIAM: The contest before us concerns whether the District Court was correct in holding by summary judgment that plaintiff-appellee, First National Bank of Chicago (FNBC), had a perfected security interest in silage located on property owned individually by Richmond C. Harper, Sr. (Harper), who happened also to be a shareholder, director, and chief executive officer of Maverick Feed Yards, Inc. (Maverick), the corporate debtor. Underlying this law suit were several factual issues, including (i) whether the so-called storage agreement between defendant-appellant Edward M. Pendell (Pen-dell) and Harper, which reserved title and thus constituted a conditional sales contract requiring recordation, was intended to, or did, bind Maverick; and (ii) whether, if the above “agreement” did not bind Maverick, the 1974 and 1975 sales contracts between Pendell and Maverick continued to apply to the delivery of silage to Harper’s premises during 1976. Under Fed.R.Civ.P. 56(c) (1980), summary judgment shall only be rendered where the record shows that there is no genuine issue of fact and that the moving party is entitled to a judgment. as a matter of law. Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980); Irwin v. United States, 558 F.2d 249, 251 (5th Cir. 1977). The District Court hearing such a motion must construe all pleadings liberally in favor of the party against whom the motion is made. Dassinger v. South Central Bell Telephone Co., 505 F.2d 672, 674 (5th Cir. 1974). Because factual questions remain with regard to (i) the nature of the storage agreement between Pendell and Harper, as well as (ii) the vitality of the sales contract between Pendell and Maverick, we reverse and remand this case for determination of these and other disputed contentions by a trier of fact. REVERSED and REMANDED. . Tex.Bus. & Com.Code § 9.114 (Vernon 1980). Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer: