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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: |
sc_caseorigin | 160 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES v. NEW MEXICO
No. 77-510.
Argued April 24, 25, 1978
Decided July 3, 1978
Rehnquist, J., delivered the opinion of the Court, in which Burger, C. -J., and Stewart, Blackmun, and Stevens, JJ., joined. Powell, J., filed an opinion dissenting in part, in which Brennan, White, and Marshall, JJ., joined, post, p. 718.
Assistant Attorney General Moorman argued the cause for the United States. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Barnett, Peter R. Steenland, and Dirk D. Snel.
Richard A. Simms, Special Assistant Attorney General of New Mexico, argued the cause for respondent. With him on the brief were Toney Anaya, Attorney General, Peter Thomas White, and Don Klein, Special Assistant Attorneys General.
John Undem Carlson argued the cause for the Twin Lakes Reservoir and Canal Co. et al. as amici curiae urging affirm-anee. With, him on the brief were Alan E. Boles, Jr., Charles M. Elliott, and Charles J. Beise
A brief of amici curiae urging affirmance was filed by Ralph Hunsaker for the Arizona Water Commission, and for their respective States by Evelle J. Younger, Attorney General of California; Robert B. Hansen, Attorney General of Utah; Michael T. Greely, Attorney General of Montana; Wayne L. Kidwell, Attorney General of Idaho, and Josephine Bee-man, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Assistant Attorney General; Robert F. List, Attorney General of Nevada, and Harry W. Swainston, Deputy Attorney General; James A. Redden, Attorney General of Oregon, and Clarence R. Kruger, Assistant Attorney General; J. D. MacFarlane, Attorney General of Colorado, and David W. Robbins, Deputy Attorney General; V. Frank Mendicino, Attorney General of Wyoming, and Jack D. Palma II, Assistant Attorney General. Briefs of amici curiae urging affirmance were also filed by Gary J. Greenberg for Molycorp, Inc.; by J. Wayne Woodbury for Phelps Dodge Corp.; and by M. Byron Lewis and Neil Vincent Wake for the Salt River Project Agricultural Improvement and Power District.
Mr. Justice Rehnquist
delivered the opinion of the Court.
The Rio Mimbres rises in the southwestern highlands of New Mexico and flows generally southward, finally disappearing in a desert sink just north of the Mexican border. The river originates in the upper reaches of the Gila National Forest, but during its course it winds more than 50 miles past privately owned lands and provides substantial water for both irrigation and mining. In 1970, a stream adjudication was begun by the State of New Mexico to determine the exact rights of each user to water from the Rio Mimbres. In this adjudication the United States claimed reserved water rights for use in the Gila National Forest. The State District Court held that the United States, in setting aside the Gila National Forest from other public lands, reserved the use of such water “as may be necessary for the purposes for which [the land was] withdrawn,” but that these purposes did not include recreation, aesthetics, wildlife preservation, or cattle grazing. The United States appealed unsuccessfully to the Supreme Court of New Mexico. Mimbres Valley Irrigation Co. v. Salopek, 90 N. M. 410, 564 P. 2d 615 (1977). We granted certiorari to consider whether the Supreme Court of New Mexico had applied the correct principles of federal law in determining petitioner’s reserved rights in the Mimbres. 434 U. S. 1008. We now affirm.
The question posed in this case — what quantity of water, if any, the United States reserved out of the Rio Mimbres when it set aside the Gila National Forest in 1899 — is a question of implied intent and not power. In California v. United States, ante, at 653-663, we had occasion to discuss the respective authority of Federal and State Governments over waters in the Western States. The Court has previously concluded that whatever powers the States acquired over their waters as a result of congressional Acts and admission into the Union, however, Congress did not intend thereby to relinquish its authority to reserve unappropriated water in the future for use on appurtenant lands withdrawn from the public domain for specific federal purposes. Winters v. United States, 207 U. S. 564, 577 (1908); Arizona v. California, 373 U. S. 546, 597-598 (1963); Cappaert v. United States, 426 U. S. 128, 143-146 (1976).
Recognition of Congress’ power to reserve water for land which is itself set apart from the public domain, however, does not answer the question of the amount of water which has been reserved or the purposes for which the water may be used. Substantial portions of the public domain have been withdrawn and reserved by the United States for use as Indian reservations, forest reserves, national parks, and national monuments. And water is frequently necessary to achieve the purposes for which these reservations are made. But Congress has seldom expressly reserved water for use on these withdrawn lands. If water were abundant, Congress’ silence would pose no problem. In the arid parts of the West, however, claims to water for use on federal reservations inescapably vie with other public and private claims for the limited quantities to be found in the rivers and streams. This competition is compounded by the sheer quantity of reserved lands in the Western States, which lands form brightly colored swaths across the maps of these States.
The Court has previously concluded that Congress, in giving the President the power to reserve portions of the federal domain for specific federal purposes, impliedly authorized him to reserve "appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert, supra, at 138 (emphasis added). See Arizona v. California, supra, at 595-601; United States v. District Court for Eagle County, 401 U. S. 520, 522-523 (1971); Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976). While many of the contours of what has come to be called the “implied-reservation-of-water doctrine” remain unspecified, the Court has repeatedly emphasized that Congress reserved “only that amount of water necessary to fulfill the purpose of the reservation, no more.” Cappaert, supra, at 141. See Arizona v. California, supra, at 600-601; District Court for Eagle County, supra, at 523. Each time this Court has applied the “implied-reservation-of-water doctrine,” it has carefully examined both the asserted water right and the specific purposes for which the land was reserved, and concluded that without the water the purposes of the reservation would be entirely defeated.
This careful examination is required both because the reservation is implied, rather than expressed, and because of the history of congressional intent in the field of federal-state jurisdiction with respect to allocation of water. Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. See California v. United States, ante, at 653-670, 678-679. Where water is necessary to fulfill the very purposes for which a federal reservation was created, it is reasonable to conclude, even in the face of Congress’ express deference to state water law in other areas, that the United States intended to reserve the necessary water. Where water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator.
Congress indeed has appropriated funds for the acquisition under state law of water to be used on federal reservations. Thus, in the National Park Service Act of Aug. 7, 1946, 60 Stat. 885, as amended, 16 U. S. C. § 17j — 2 (1976 ed.), Congress authorized appropriations for the “ [investigation and establishment of water rights in accordance with local custom, laws, and decisions of courts, including the acquisition of water rights or of lands or interests in lands or rights-of-way for use and protection of water rights necessary or beneficial in the administration and public use of the national parks and monuments.” (Emphasis added.) The agencies responsible for administering the federal reservations have also recognized Congress' intent to acquire under state law any water not essential to the specific purposes of the reservation.
The State District Court referred the issues in this case to a Special Master, who found that the United States was diverting 6.9 acre-feet per annum of water for domestic-residential use, 6.5 acre-feet for road-water use, 3.23 acre-feet for domestic-recreational use, and .10 acre-foot for “wildlife” purposes. The Special Master also found that specified amounts of water were being used in the Gila National Forest for stockwatering and that an “instream flow” of six cubic feet per second was being “used” for the purposes of fish preservation. The Special Master apparently believed that all of these uses fell within the reservation doctrine, and also concluded that the United States might have reserved rights for future water needs, ordering it to submit a report on future requirements within one year of his decision.
The District Court of Luna County disagreed with many of the Special Master’s legal conclusions, but agreed with the Special Master that the Government should prepare within one year a report covering any future water requirements that might support a claim of reserved right in the waters of the Rio Mimbres. The District Court concluded that the United States had not established a reserved right to a minimum instream flow for any of the purposes for which the Gila National Forest was established, and that any water rights arising from cattle grazing by permittees on the forest should be adjudicated “to the permittee under the law of prior appropriation and not to the United States.”
The United States appealed this decision to the Supreme Court of New Mexico. The United States contended that it was entitled to a minimum instream flow for “aesthetic, environmental, recreational and 'fish’ purposes.” 90 N. M., at 412, 564 P. 2d, at 617. The Supreme Court of New Mexico concluded that, at least before the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U. S. C. § 528 et seq. (1976 ed.), national forests could only be created “to insure favorable conditions of water flow and to furnish a continuous supply of timber” and not for the purposes upon which the United States was now basing its asserted reserved rights in a minimum instream flow. 90 N. M., at 412-413, 564 P. 2d, at 617-619. The United States also argued that it was entitled to a reserved right for stockwatering purposes. The State Supreme Court again disagreed, holding that stockwatering was not a purpose for which the national forests were created. Id., at 414, 564 P. 2d, at 619.
II
A
The quantification of reserved water rights for the national forests is of critical importance to the West, where, as noted earlier, water is scarce and where more than 50% of the available water either originates in or flows through national forests. When, as in the case of the Rio Mimbres, a river is fully appropriated, federal reserved water rights will frequently require a gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators. This reality has not escaped the attention of Congress and must be weighed in determining what, if any, water Congress reserved for use in the national forests.
The United States contends that Congress intended to reserve minimum instream flows for aesthetic, recreational, and fish-preservation purposes. An examination of the limited purposes for which Congress authorized the creation of national forests, however, provides no support for this claim. In the mid and late 1800’s, many of the forestó on the public domain were ravaged and the fear arose that the forest lands might soon disappear, leaving the United States with a shortage both of timber and of watersheds with which to encourage stream flows while preventing floods. It was in answer to these fears that in 1891 Congress authorized the President to “set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations.” Creative Act of Mar. 3, 1891, § 24, 26 Stat. 1103, as amended, 16 U. S. C. § 471 (repealed 1976).
The Creative Act of 1891 unfortunately did not solve the forest problems of the expanding Nation. To the dismay of the conservationists, the new national forests were not adequately attended and regulated; fires and indiscriminate timber cutting continued their toll. To the anguish of Western settlers, reservations were frequently made indiscriminately. President Cleveland, in particular, responded to pleas of conservationists for greater protective measures by reserving some 21 million acres of “generally settled” forest land on February 22, 1897. President Cleveland’s action drew immediate and strong protest from Western Congressmen who felt that the “hasty and ill considered” reservation might prove disastrous to the settlers living on or near these lands.
Congress’ answer to these continuing problems was threefold. It suspended the President’s Executive Order of February 22, 1897; it carefully defined the purposes for which national forests could in the future be reserved; and it provided a charter for forest management and economic uses within the forests. Organic Administration Act of June 4, 1897, 30 Stat. 34, 16 U. S. C. §473 et seg. (1976 ed.). In particular, Congress provided:
“No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of [the Creative Act of 1891], to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.” 30 Stat. 35, as codified, 16 U. S. C. § 475 (1976 ed.) (emphasis added).
The legislative debates surrounding the Organic Administration Act of 1897 and its predecessor bills demonstrate that Congress intended national forests to be reserved for only two purposes — “[t]o conserve the water flows, and to furnish a continuous supply of timber for the people.” 30 Cong. Rec. 967 (1897) (Cong. McRae). See United States v. Grimaud, 220 U. S. 506, 515 (1911). National forests were not to be reserved for aesthetic, environmental, recreational, or wildlife-preservation purposes.
“The objects for which the forest reservations should be made are the protection of the forest growth against destruction by fire and ax, and preservation of forest conditions upon which water conditions and water flow are dependent. The purpose, therefore, of this bill is to maintain favorable forest conditions, without excluding the use of these reservations for other purposes. They are not parks set aside for nonuse, but have been established for economic reasons.” 30 Cong. Rec. 966 (1897) (Cong. McRae).
Administrative regulations at the turn of the century confirmed that national forests were to be reserved for only these two limited purposes.
Any doubt as to the relatively narrow purposes for which national forests were to be reserved is removed by comparing the broader language Congress used to authorize the establishment of national parks. In 1916, Congress created the National Park Service and provided that the
“fundamental purpose of the said parks, monuments, and reservations ... is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same . . . unimpaired for the enjoyment of future generations.” National Park Service Act of 1916, 39 Stat. 535, § 1, as amended, 16 U. S. C. § 1 (1976 ed.).
When it was Congress’ intent to maintain minimum instream flows within the confines of a national forest, it expressly so directed, as it did in the case of the Lake Superior National Forest:
“In order to preserve the shore lines, rapids, waterfalls, beaches and other natural features of the region in an unmodified state of nature, no further alteration of the natural water level of any lake or stream . . . shall be authorized.” 16 U. S. C. § 577b' (1976 ed.).
National park legislation is not the only instructive comparison. In the Act of Mar. 10, 19S4, 48 Stat. 400, 16 U. S. C. § 694 (1976 ed.), Congress authorized the establishment within individual national forests of fish and game sanctuaries, but only with the consent of the state legislatures. The Act specifically provided:
“For the purpose of providing breeding places for game birds, game animals, and fish on lands and waters in the national forests not chiefly suitable for agriculture, the President of the United States is authorized, upon recommendation of the Secretary of Agriculture and the Secretary of Commerce and with the approval of the State legislatures of the respective States in which said national forests are situated, to establish by public proclamation certain specified and limited areas within said forests as fish and game sanctuaries or refuges which shall be devoted to the increase of game birds, game animals, and fish of all kinds naturally adapted thereto.” (Emphasis added.)
If, as the dissent contends, post, at 722, Congress in the Organic Administration Act of 1897 authorized the reservation of forests to “improve and protect” fish and wildlife, the 1984 Act would have been unnecessary. Nor is the dissent's position consistent with Congress' concern in 1934 that fish and wildlife preserves only be created “with the approval of the State legislatures.”
As the dissent notes, in creating what would ultimately become Yosemite National Park, Congress in 1890 explicitly instructed the Secretary of the Interior to provide against the wanton destruction of fish and game inside the forest and against their taking “for the purposes of merchandise or profit.” -Act of Oct. 1, 1890, § 2, 26 Stat. 651. Congress also instructed the Secretary to protect all “the natural curiosities, or wonders within such reservation, ... in their natural condition.” By comparison, Congress in the 1897 Organic Act expressed no concern for the preservation of fish and wildlife within national forests generally, Nor is such a concern found in any of the comments made during the legislative debate on the 1897 Act. Cf. also H. It. 119, 54th Cong., 1st Sess., 28 Cong. Ree. 6410 (1896).
B
Not only is the Government’s claim that Congress intended to reserve water for recreation and wildlife preservation inconsistent with Congress’- failure to recognize these goals as purposes of the national forests, it would defeat the very purpose for which Congress did create the national forest system.
“[F] orests exert a most important regulating influence upon the flow of rivers, reducing floods and increasing the water supply in the low stages. The importance of their conservation on the mountainous watersheds which collect the scanty supply for the arid regions of North America can hardly be overstated. With the natural regimen of the streams replaced by destructive floods in the spring, and by dry beds in the months when the irrigating flow is most needed, the irrigation of wide areas now proposed will be impossible, and regions now supporting prosperous communities will become depopulated.” S. Doc. No. 105, 55th Cong., 1st Sess., 10 (1897).
The water that would be “insured” by preservation of the forest was to “be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder.” Organic Administration Act of 1897, 30 Stat. 36, 16 U. S. C. § 481 (1976 ed.). As this provision and its legislative history-evidence, Congress authorized the national forest system principally as a means of enhancing the quantity of water that would be available to the settlers of the arid West. The Government, however, would have us now believe that Congress intended to partially defeat this goal by reserving significant amounts of water for purposes quite inconsistent with this goal.
C
In 1960, Congress passed the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U. S. C. § 528 et seq. (1976 ed.), which provides:
“It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the [Organic Administration Act of 1897.]”
The Supreme Court of New Mexico concluded that this Act did not give rise to any reserved rights not previously authorized in the Organic Administration Act of 1897. “The Multiple-Use Sustained-Yield Act of 1960 does not have a retroactive effect nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897.” 90 N. M., at 413, 564 P. 2d, at 618. While we conclude that the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, we agree that Congress did not intend to thereby expand the reserved rights of the United States.
The Multiple-Use Sustained-Yield Act of 1960 establishes the purposes for which the national forests “are established and shall be administered.” (Emphasis added.) The Act directs the Secretary of Agriculture to administer all forests, including those previously established, on a multiple-use and sustained-yield basis. H.. R. 10572, 86th Cong., 2d Sess., 1 (1960). In the administration of the national forests, therefore, Congress intended the Multiple-Use Sustained-Yield Act of 1960 to broaden the benefits accruing from all reserved national forests.
The House Report accompanying the 1960 legislation, however, indicates that recreation, range, and “fish” purposes are “to be supplemental to, but not in derogation of, the purposes for which the national forests were established” in the Organic Administration Act of 1897.
“The addition of the sentence to follow the first sentence in section 1 is to make it clear that the declaration of congressional policy that the national forests are established and shall be administered for the purposes enumerated is supplemental to, but is not in derogation of, the purposes of improving and protecting the forest or for securing favorable conditions of water flows and to furnish a continuous supply of timber as set out in the cited provision of the act of June 4, 1897. Thus, in any establishment of a national forest a purpose set out in the 1897 act must be present but there may also exist one or more of the additional purposes listed in the bill. In other words, a national forest could not be established just for the purpose of outdoor recreation, range, or wildlife and fish purposes, but such purposes could be a reason for the establishment of the forest if there also were one or more of the purposes of improving and protecting the forest, securing favorable conditions of water flows, or to furnish a continuous supply of timber as set out in the 1897 act.” H. R. Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960).
As discussed earlier, the “reserved rights doctrine” is a doctrine built on implication and is an exception to Congress’ explicit deference to state water law in other areas. Without legislative history to the contrary, we are led to conclude that Congress did not intend in enacting the Multiple-Use Sustained-Yield Act of 1960 to reserve water for the secondary purposes there established. A reservation of additional water could mean a substantial loss in the amount of water available for irrigation and domestic use, thereby defeating Congress’ principal purpose of securing favorable conditions of water flow. Congress intended the national forests to be administered for broader purposes after 1960 but there is no indication that it believed the new purposes to be so crucial as to require a reservation of additional water. By reaffirming the primacy of a favorable water flow, it indicated the opposite intent.
Ill
What we have said also answers the Government’s contention that Congress intended to reserve water from the Rio Mimbres for stockwatering purposes. The United States issues permits to private cattle owners to graze their stock on the Gila National Forest and provides for stockwatering at various locations along the Rio Mimbres. The United States contends that, since Congress clearly foresaw stockwatering on national forests, reserved rights must be recognized for this purpose. The New Mexico courts disagreed and held that any stock-watering rights must be allocated under state law to individual stockwaterers. We agree.
While Congress intended the national forests to be put to a variety of uses, including stockwatering, not inconsistent with the two principal purposes of the forests, stockwatering was not itself a direct purpose of reserving the land. If stock-watering could not take place in the Gila National Forest, Congress’ purposes in reserving the land would not be defeated. Congress, of course, did intend to secure favorable water flows, and one of the uses to which the enhanced water supply was intended to be placed was probably stockwatering. But Congress intended the water supply from the Rio Mimbres to be allocated among private appropriators under state law. 16 U. S. C. §481 (1976 ed.). There is no indication in the legislative histories of any of the forest Acts that Congress foresaw any need for the Forest Service to allocate water for stockwatering purposes, a task to which state law was well suited.
IY
Congress intended that water would be reserved only where necessary to preserve the timber or to secure favorable water flows for private and public uses under state law. This intent is revealed in the purposes for which the national forest system was created and Congress’ principled deference to state water law in the Organic Administration Act of 1897 and other legislation. The decision of the Supreme Court of New Mexico is faithful to this congressional intent and is therefore
Affirmed.
The suit was initially filed in 1966 as a private action by the Mimbres Valley Irrigation Co. to enjoin alleged illegal diversions from the Rio Mimbres. In 1970, the State of New Mexico, pursuant to New Mexico Stat. Ann. §75-4-4 (1953), filed a complaint-in-intervention seeking a general adjudication of water rights in the Rio Mimbres and its tributaries. Under 43 U. S. C. § 666 (a), “[c]onsent is given to> join the United States as a defendant in any suit ... for the adjudication of rights to the use of water of a river system or other source,” including the reserved rights of the United States. See United States v. District Court for Eagle County, 401 U. S. 520 (1971); United States v. District Court for Water Div. No. 5, 401 U. S. 527 (1971).
See also Andrus v. Charlestone Stone Products Co., 436 U. S. 604 (1978).
The percentage of federally owned land (excluding Indian reservations and other trust properties) in the Western States ranges from 29.5% of the land in the State of Washington to 86.5% of the land in the State of Nevada, an average of about 46%. Of the land in the State of New Mexico, 33.6% is federally owned. General Services Administration, Inventory Report on Real Property Owned by the United States Throughout the World as of June 30, 1974, pp. 17, 34, and App. 1, table 4. Because federal reservations are normally found in the uplands of the Western States rather than the flatlands, the percentage of water flow originating in or flowing through the reservations is even more impressive. More than 60% of the average annual water yield in the 11 Western States is from federal reservations. The percentages of average annual water yield range from a low of 56% in the Columbia-North Pacific water-resource region to a high of 96% in the Upper Colorado region. In the Rio Grande water-resource region, where the Rio Mimbres lies, 77% of the average runoff originates on federal reservations. C. Wheatley, C. Corker, T. Stetson, & D. Reed, Study of the Development, Management and Use of Water Resources on the Public Lands 402-406, and table 4 (1969).
In Winters v. United States, 207 U. S. 564 (1908), the Court was faced with two questions. First, whether Congress, when it created the Fort Belknap Indian Reservation by treaty, impliedly guaranteed the Indians a reasonable quantity of water. And second, whether Congress repealed this reservation of water when it admitted Montana to the Union one year later “upon an equal footing with the original States.” In answering the first question, the Court emphasized that the reservation was formed to change the Indians’ “nomadic and uncivilized” habits and to make them into “a pastoral and civilized people.” Id., at 576. Without water to irrigate the lands, however, the Fort Belknap Reservation would be “practically valueless” and “civilized communities could not be established thereon.” Ibid. The purpose of the Reservation would thus be “impair[ed] or defeat[ed].” Id., at 577. In answering the second question, the Court concluded that “it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste — took from them the means of continuing their old habits, yet did not leave them the power to change to new ones.” Ibid.
In Arizona v. California, the Court only had reason to discuss the Master’s finding that the United States had reserved water for use on Arizona Indian reservations. Arizona argued that there was “a lack of evidence showing that the United States in establishing the reservations intended to reserve water for them.” 373 U. S., at 598. The Court disagreed:
“It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind — hot, scorching sands — and that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised.” Id., at 598-599.
The Court also pointed to congressional debate that indicated that Congress had intended to reserve the water for the reservations. Id., at 599.
In Cappaert, Congress had given the President the power to reserve “objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government.” American Antiquities Preservation Act, 34 Stat. 225, 16 U. S. C. § 431 et seq. (1976 ed.). Pursuant to this power, the President had reserved Devil’s Hole as a national monument. Devil’s Hole, according to the Presidential Proclamation, is “ ‘a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System’ it also contains “ ‘a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region.’ ” 426 U. S., at 132. As the Court concluded, the pool was reserved specifically to preserve its scientific interest, principal of which was the Devil’s Hole pupfish. Without a certain quantity of water, these fish would not be able to spawn and would die. This quantity of water was therefore impliedly reserved when the monument was proclaimed. Id., at 141. The Court, however, went on to note that the pool “need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. . . . The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil’s Hole, thus implementing the stated objectives of the Proclamation.” Ibid, (emphasis added).
See Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 302-310 (1964) (App. B, supplementary material submitted by Sen. Kuchel), listing 37 statutes in which Congress has expressly recognized the importance of deferring to state water law, from the Mining Act of 1866, § 9, 14 Stat. 253, to the Act of Aug. 28, 1958, § 202, 72 Stat. 1059, stating Congress’ policy to “recognize and protect the rights and interests of the State of Texas in determining the development of the watersheds of the rivers . . . and its interests and rights in water utilization and control.”
See also the Department of Agriculture Organic Act of 1944, 58 Stat. 737, 16 U. S. C. § 526 (1976 ed.), authorizing the appropriation of funds “for the investigation and establishment of water rights, including the purchase thereof or of lands or interests in land or rights-of-way for use and protection of water rights necessary or beneficial in connection with the administration and public use of the national forests.”
Before this Court’s decisions in FPC v. Oregon, 349 U. S. 435 (1955) and Arizona v. California, recognizing reserved rights outside of Indian reservations, the Forest Service apparently believed that all of its water had to be obtained under state law. “Bights to the use of water for National Forest purposes will be obtained in accordance with State law.” Forest Service Manual (1936). While the Forest Service has apparently modified its policy since those decisions, their Service Manual still indicates a policy of deferring to state water law wherever possible. “The right of the States to appropriate and otherwise control the use of water is recognized, and the policy of the Forest Service is to abide by applicable State laws and regulations relating to water use. When water is needed by the Forest Service either for development of programs, improvements, or other uses, action will be taken promptly to acquire necessary water rights. . . .” Forest Service Handbook §2514 (Feb. 1960). “The rights to use water for national forest purposes will be obtained in accordance with State law. This policy is based on the act of June 4, 1897 (16 U. S. C. [§] 481).” Forest Service Manual §2514.1 (Jan. 1960).
The District Court of Luna County, in its finding of facts, did not list any current water use for “wildlife” purposes. App. 226-227. The United States apparently did not object to this deletion in state court nor does it challenge the deletion in its brief before this Court.
Wheatley, Corker, Stetson & Reed, supra n. 3, at 211.
J. Ise, The United States Forest Policy 62-118 (1972).
Id., at 120-122.
Id., at 129. President Cleveland’s action more than doubled the acreage of then-existing United States forest reserves. Cf. id., at 120.
Id., at 130-139. Western Congressmen had objected since 1891 to what they viewed to be frequently indiscriminate creation of federal forest reserves. Id., at 129-130. A major complaint of the Western Congressmen was that rampant reserving of forest lands by the United States might leave “no opportunity there for further enlargement of civilization by the establishment of agriculture or mining.” 30 Cong. Rec. 1281 (1897) (Sen. Cannon).
The Government notes that the Act forbids the establishment of national forests except “to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber,” and argues from this wording that “improvement” and “protection” of the forests form a third and separate purpose of the national forest system. A close examination of the language of the Act, however, reveals that Congress only intended national forests to be established for two purposes. Forests would be created only “to improve and protect the forest within the boundaries,” or, in other words, “for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber.”
This reading of the Act is confirmed by its legislative history. Nothing in the legislative history suggests that Congress intended national forests to be established for three purposes, one of which would be extremely broad. Indeed, it is inconceivable that a Congress which was primarily concerned with limiting the President’s power to reserve the forest lands of the West would provide for the creation of forests merely “to improve and protect the forest within the boundaries”; forests would be reserved for their improvement and protection, but only to serve the purposes of timber protection and favorable water supply.
This construction is revealed by a predecessor bill to the 1897 Act which was introduced but not passed in the 54th Congress; the 1896 bill provided: “That the object for which public forest reservations shall be established under the provisions of the act approved March 3, 1891, shall be to protect and improve the forests for the purpose of securing a continuous supply of timber for the people and securing conditions favorable to water flow.” H. R. 119, 54th Cong., 1st Sess. (1896) (emphasis added).
Earlier bills, like the 1897 Act, were less clear and could be read as setting forth either two or three purposes. Explanations of the bills by their congressional sponsors, however, clearly revealed that national forests would be established for only two purposes. Compare, for example, H. R. 119, 53d Cong., 1st Sess. (1893) (“[N]o public forest reservations shall be established except to improve and protect the forest within the reservation or for the purpose of securing favorable conditions of water flow and continuous supplies of timber to the people”) with its sponsor’s description of the bill, 25 Cong. Rec. 2375 (1893) (Cong. McRae) (“The bill authorizes the President to establish forest reservations, and to protect the forests ‘for the purpose of securing favorable conditions of water flow and continuous supplies of timber to the people’ ”).
See 30 Cong. Rec. 986 (1897) (Cong. Bell); id., at 987 (Cong. Jones) ; H. R. Rep. No. 1593, 54th Cong., 1st Sess., 3 (1896); 25 Cong. Rec. 2435 (1893) (Cong. McRae); H. R. Rep. No. 2437, 52d Cong., 2d Sess., 2 (1893); S. Rep. No. 1002, 52d Cong., 1st Sess., 10, 12 (1892).
According to the 1901 Regulations of the Interior Department, “Public forest reservations are established to protect and improve the forests for the purpose of securing a permanent supply of timber for the people and insuring conditions favorable to continuous water flow.” Department of Interior Circular, 30 L. D. 23, 24 (1900). Twelve years later, the Chief Forester also elaborated on the purposes of the national forests: “The National Forests are set aside specifically for the protection of water resources and the production of timber .... The aim of administration is essentially different from that of a national park, in which economic use of material resources comes second to the preservation of natural conditions on aesthetic grounds.” U. S. Department of Agriculture, Report of the Forester 10-11 (1913).
As Congressman McRae noted in introducing a predecessor bill to the 1897 Act, Congress was “not dealing with parks, but forest reservations, and there is a vast difference.” 25 Cong. Rec. 2375 (1893).
While in 1906 Congress transferred jurisdiction of the national forests to the Department of Agriculture, Transfer Act of 1905, 33 Stat. 628, national parks are exclusively under the jurisdiction of the Department of the Interior. This difference in jurisdiction again points up the limited purposes of the national forests, as explained in the House Report on the National Park Service Act:
“It was the unanimous opinion of the committee that there should not be any conflict of jurisdiction as between the departments [of the Interior and Agriculture] of such a nature as might interfere with the organization and operation of the national parks, which are set apart for the public enjoyment and entertainment, as against those reservations specifically created for the conservation of the natural resources of timber and other national assets, and devoted strictly to utilitarian purposes, in the vastly greater areas, known as national forests.
“The segregation of national-park areas necessarily involves the question of the preservation of nature as it exists, and the enjoyment of park privileges requires the development of adequate and moderate-priced transportation and hotel facilities. In the national forests there must always be kept in mind as primary objects and purposes the utilitarian use of land, of water,, and of timber, as contributing to the wealth of all the people.” H. R. Rep. No. 700, 64th Cong., 1st Sees., 3 (1916).
In comparing the 1897 Organic Act with enabling legislation for national parks and particular national forests, and with the Act of Mar. 10, 1934, we of course do not intimate any views as to what, if any, water Congress reserved under the latter statutes.
It was the view of several of the Congressmen who spoke on the floor of the House that national forests were necessary “not to save the timber for future use so much as to preserve the water supply.” 30 Cong. Rec. 1007 (1897) (Cong. Ellis). See also id., at 1399 (Cong. Loud).
Congress has assured that the waters which flow through national forests are available for use by state appropriators by authorizing rights-of-way for ditches to carry the water to agricultural, domestic, mining, and milling uses. See Right-of-Way Permit Act of 1891, 43 U. S. C. § 946 et seq.; Right-of-Way Permit Act of 1901, 43 U. S. C. §959; Forest Right-of-Way Act of 1905, 16 U. S. C. § 524 (repealed in part 1976). Congress has evidenced its continuing concern with enhancing the water supply for nonforest use by specifically authorizing the President to set aside and protect national forest lands needed as sources of municipal water supplies. Act of May 28, 1940, 54 Stat. 224,16 U. S. C. § 552a (1976 ed.). See also Act of June 7, 1924,16 U. S. C. § 570 (1976 ed.) (authorizing the purchase of private lands for inclusion in national forests where needed to protect “streams used for navigation or for irrigation”).
The United States does not argue that the Multiple-Use Sustained-Yield Act of 1960 reserved additional water for use on the national forests. Instead, the Government argues that the Act confirms that Congress always foresaw broad purposes for the national forests and authorized the Secretary of the Interior as early as 1897 to reserve water for recreational, aesthetic, and wildlife-preservation uses. Brief for United States 53-56. As the legislative history of the 1960 Act demonstrates, however, Congress believed that the 1897 Organic Administration Act only authorized the creation of national forests for two purposes — timber preservation and enhancement of water supply — and intended, through the 1960 Act, to expand the purposes for which the national forests should be administered. See, e. g., H. R. Rep. No. 1551, 86th Cong., 2d Sess., 4 (1960).
Even if the 1960 Act expanded the reserved water rights of the United States, of course, the rights would be subordinate to any appropriation of water under state law dating to before 1960.
We intimate no view as to whether Congress, in the 1960 Act, authorized the subsequent reservation of national forests out of public lands to which a broader doctrine of reserved water rights might apply.
As discussed earlier, the national forests were not to be “set aside for non-use,” 30 Cong. Rec. 966 (1897) (Cong. McRae), but instead to be opened up for any economic use not inconsistent with the forests’ primary purposes. Ibid. One use that Congress foresaw was “pasturage.” Ibid. See also id., at 1006 (Cong. Ellis); id., at 1011 (Cong. De Vries). As this Court has previously recognized, however, grazing was merely one use to which the national forests could possibly be put and would not be permitted where it might interfere with the specific purposes of the national forests including the securing of favorable conditions of water flow. Under the 1891 and 1897 forest Acts, “any use of the reservation for grazing or other lawful purpose was required to be subject to the rules and regulations established by the Secretary of Agriculture. To pasture sheep and cattle on the reservation, at will and without restraint, might interfere seriously with the accomplishment of the purposes for which they were established. But a limited and regulated use for pasturage might not be inconsistent with the object sought to be attained by the statute.” United States v. Grimaud, 220 U. S. 506, 515-516 (1911). See also Light v. United States, 220 U. S. 523 (1911).
As noted earlier, the Organic Administration Act of 1897 specifically provided: “All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder.” 30 Stat. 36, as amended, 16 U. S. C. §481 (1976 ed.) (emphasis added). The United States, seizing on the italicized wording, contends that Congress intended the United States to allocate water to certain private users — in this case, cattle ranchers — outside of the structure of state water law. Contemporaneous Acts of Congress, however, preclude this construction of §481.
In the same Act in which Congress first authorized the national forest system, Act of Mar. 3,1891, § 18,26 Stat. 1101, Congress provided for rights-of-way through the “public lands and reservations” for purposes of irrigation, “Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, . . . and the 'privilege herein granted shall not he construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.” (Emphasis added.) Contemporaneous administrative regulations reflected that the “control of the flow and use of the water” on federal reservations was “a matter exclusively under State or Territorial control.” Department of Interior Circular, 18 L. D. 168, 169-170 (1894). See also H. H. Sinclair, 18 L. D. 573, 574 (1894). Only a few months before Congress passed the Organic Administration Act of 1897, Congress reaffirmed the state-law policy of the 1891 Act. In the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, Congress authorized the improvement and occupation of reservoir sites on public lands, “Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate.” As we noted in California v. United States, ante, at 661, it “was clearly the opinion of a majority of the Congressmen who spoke on the bill . . . that [this proviso] was unnecessary except out of an excess of caution.” It was their belief that, at least under the 1891 Act, the States had exclusive control of the distribution of water on public lands and reservations. Ante, at 661-662, and n. 16.
Contemporaneous administrative regulations of the officials responsible for administering the national forests confirm that the States were to have control of the distribution of water from streams flowing through the forests. In 1908, for example, the Forest Service began a policy of charging for the use of water, based upon the length of ditches, acreage flooded, and use of advantageous locations, but emphasized that the “water itself is granted by the State, not by the United States.” 1906 Report of the Forester to the Secretary of Agriculture, H. R. Doc. No. 6, 59th Cong., 2d Sess., p. 273 (1907).
Question: What is the court in which the case originated?
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Answer: |
sc_casesource | 021 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
Avondale LOCKHART, Petitioner
v.
UNITED STATES.
No. 14-8358.
Supreme Court of the United States
Argued Nov. 3, 2015.
Decided March 1, 2016.
Edward S. Zas, New York, NY, for petitioner.
Ann O'Connell, Washington, DC, for respondent.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Elizabeth D. Collery, Attorney, Department of Justice, Washington, DC, for respondent.
David A. Lewis, Of Counsel, Edward S. Zas, Barry D. Leiwant, Daniel Habib, Darrell B. Fields, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for petitioner.
Justice SOTOMAYOR delivered the opinion of the Court.
Defendants convicted of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have "a prior conviction... under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." § 2252(b)(2).
The question before us is whether the phrase "involving a minor or ward" modifies all items in the list of predicate crimes ("aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct") or only the one item that immediately precedes it ("abusive sexual conduct"). Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only "abusive sexual conduct." The Eighth Circuit has reached the contrary result. We granted certiorari to resolve that split. 575 U.S. ----, 135 S.Ct. 2350, 192 L.Ed.2d 143 (2015). We affirm the Second Circuit's holding that the phrase "involving a minor or ward" in § 2252(b)(2) modifies only "abusive sexual conduct."
I
In April 2000, Avondale Lockhart was convicted of sexual abuse in the first degree under N.Y. Penal Law Ann. § 130.65(1) (West Cum. Supp. 2015). The crime involved his then-53-year-old girlfriend. Presentence Investigation Report (PSR), in No. 11-CR-231-01, p. 13, ¶¶ 47-48. Eleven years later, Lockhart was indicted in the Eastern District of New York for attempting to receive child pornography in violation of 18 U.S.C. § 2252(a)(2) and for possessing child pornography in violation of § 2252(a)(4)(b). Lockhart pleaded guilty to the possession offense and the Government dismissed the receipt offense.
Lockhart's presentence report calculated a guidelines range of 78 to 97 months for the possession offense. But the report also concluded that Lockhart was subject to § 2252(b)(2)'s mandatory minimum because his prior New York abuse conviction related "to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." PSR ¶¶ 87-88.
Lockhart objected, arguing that the statutory phrase "involving a minor or ward" applies to all three listed crimes: "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct." He therefore contended that his prior conviction for sexual abuse involving an adult fell outside the enhancement's ambit. The District Court rejected Lockhart's argument and applied the mandatory minimum. The Second Circuit affirmed his sentence. 749 F.3d 148 (C.A.2 2014).
II
Section 2252(b)(2) reads in full:
"Whoever violates, or attempts or conspires to violate [18 U.S.C. § 2252(a)(4) ] shall be fined under this title or imprisoned not more than 10 years, or both, but... if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice ), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years."
This case concerns that provision's list of state sexual-abuse offenses. The issue before us is whether the limiting phrase that appears at the end of that list-"involving a minor or ward"-applies to all three predicate crimes preceding it in the list or only the final predicate crime. We hold that "involving a minor or ward" modifies only "abusive sexual conduct," the antecedent immediately preceding it. Although § 2252(b)(2)'s list of state predicates is awkwardly phrased (to put it charitably), the provision's text and context together reveal a straightforward reading. A timeworn textual canon is confirmed by the structure and internal logic of the statutory scheme.
A
Consider the text. When this Court has interpreted statutes that include a list of terms or phrases followed by a limiting clause, we have typically applied an interpretive strategy called the "rule of the last antecedent." See Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). The rule provides that "a limiting clause or phrase... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Ibid. ; see also Black's Law Dictionary 1532-1533 (10th ed. 2014) ("[Q]ualifying words or phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless the extension is necessary from the context or the spirit of the entire writing"); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012).
This Court has applied the rule from our earliest decisions to our more recent. See, e.g., Sims Lessee v. Irvine, 3 Dall. 425, 444, n., 1 L.Ed. 665 (1799) ; FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389, n. 4, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959) ; Barnhart, 540 U.S., at 26, 124 S.Ct. 376. The rule reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that modifier only to the item directly before it. That is particularly true where it takes more than a little mental energy to process the individual entries in the list, making it a heavy lift to carry the modifier across them all. For example, imagine you are the general manager of the Yankees and you are rounding out your 2016 roster. You tell your scouts to find a defensive catcher, a quick-footed shortstop, or a pitcher from last year's World Champion Kansas City Royals. It would be natural for your scouts to confine their search for a pitcher to last year's championship team, but to look more broadly for catchers and shortstops.
Applied here, the last antecedent principle suggests that the phrase "involving a minor or ward" modifies only the phrase that it immediately follows: "abusive sexual conduct." As a corollary, it also suggests that the phrases "aggravated sexual abuse" and "sexual abuse" are not so constrained.
Of course, as with any canon of statutory interpretation, the rule of the last antecedent "is not an absolute and can assuredly be overcome by other indicia of meaning." Barnhart, 540 U.S., at 26, 124 S.Ct. 376 ; see also Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme"). For instance, take " 'the laws, the treaties, and the constitution of the United States.' " Post, at 964, n. 1 (KAGAN, J., dissenting). A reader intuitively applies "of the United States" to "the laws," "the treaties" and "the constitution" because (among other things) laws, treaties, and the constitution are often cited together, because readers are used to seeing "of the United States" modify each of them, and because the listed items are simple and parallel without unexpected internal modifiers or structure. Section 2252(b)(2), by contrast, does not contain items that readers are used to seeing listed together or a concluding modifier that readers are accustomed to applying to each of them. And the varied syntax of each item in the list makes it hard for the reader to carry the final modifying clause across all three.
More importantly, here the interpretation urged by the rule of the last antecedent is not overcome by other indicia of meaning. To the contrary, § 2252(b)(2)'s context fortifies the meaning that principle commands.
B
Our inquiry into § 2252(b)(2)'s context begins with the internal logic of that provision. Section 2252(b)(2) establishes sentencing minimums and maximums for three categories of offenders. The first third of the section imposes a 10-year maximum sentence on offenders with no prior convictions. The second third imposes a 10-year minimum and 20-year maximum on offenders who have previously violated a federal offense listed within various chapters of the Federal Criminal Code. And the last third imposes the same minimum and maximum on offenders who have previously committed state "sexual abuse, aggravated sexual abuse, or abusive sexual conduct involving a minor or ward" as well as a number of state crimes related to the possession and distribution of child pornography.
Among the chapters of the Federal Criminal Code that can trigger § 2252(b)(2)'s recidivist enhancement are crimes "under... chapter 109A." Chapter 109A criminalizes a range of sexual-abuse offenses involving adults or minors and wards. And it places those federal sexual-abuse crimes under headings that use language nearly identical to the language § 2252(b)(2) uses to enumerate the three categories of state sexual-abuse predicates. The first section in Chapter 109A is titled "Aggravated sexual abuse." 18 U.S.C. § 2241. The second is titled "Sexual abuse." § 2242. And the third is titled "Sexual abuse of a minor or ward." § 2243. Applying the rule of the last antecedent, those sections mirror precisely the order, precisely the divisions, and nearly precisely the words used to describe the three state sexual-abuse predicate crimes in § 2252(b)(2) : "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct involving a minor or ward."
This similarity appears to be more than a coincidence. We cannot state with certainty that Congress used Chapter 109A as a template for the list of state predicates set out in § 2252(b)(2), but we cannot ignore the parallel, particularly because the headings in Chapter 109A were in place when Congress amended the statute to add § 2252(b)(2)'s state sexual-abuse predicates.
If Congress had intended to limit each of the state predicates to conduct "involving a minor or ward," we doubt it would have followed, or thought it needed to follow, so closely the structure and language of Chapter 109A. The conclusion that Congress followed the federal template is supported by the fact that Congress did nothing to indicate that offenders with prior federal sexual-abuse convictions are more culpable, harmful, or worthy of enhanced punishment than offenders with nearly identical state priors. We therefore see no reason to interpret § 2252(b)(2) so that "[s]exual abuse" that occurs in the Second Circuit courthouse triggers the sentence enhancement, but "sexual abuse" that occurs next door in the Manhattan municipal building does not.
III
A
Lockhart argues, to the contrary, that the phrase "involving a minor or ward"
should be interpreted to modify all three state sexual-abuse predicates. He first contends, as does our dissenting colleague, that the so-called series-qualifier principle supports his reading. This principle, Lockhart says, requires a modifier to apply to all items in a series when such an application would represent a natural construction. Brief for Petitioner 12; post, at 970.
This Court has long acknowledged that structural or contextual evidence may "rebut the last antecedent inference." Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 344, n. 4, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). For instance, in Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 40 S.Ct. 516, 64 L.Ed. 944 (1920), on which Lockhart relies, this Court declined to apply the rule of the last antecedent where "[n]o reason appears why" a modifying clause is not "applicable as much to the first and other words as to the last" and where "special reasons exist for so construing the clause in question." Id., at 348, 40 S.Ct. 516. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), this Court declined to apply the rule of the last antecedent where "there is no reason consistent with any discernable purpose of the statute to apply" the limiting phrase to the last antecedent alone. Id., at 341, 92 S.Ct. 515. Likewise, in Jama, the Court suggested that the rule would not be appropriate where the "modifying clause appear[s]... at the end of a single, integrated list." 543 U.S., at 344, n. 4, 125 S.Ct. 694. And, most recently, in Paroline v. United States, 572 U.S. ----, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), the Court noted that the rule need not be applied "in a mechanical way where it would require accepting 'unlikely premises.' " Id., at ----, 134 S.Ct., at 1721.
But in none of those cases did the Court describe, much less apply, a countervailing grammatical mandate that could bear the weight that either Lockhart or the dissent places on the series qualifier principle. Instead, the Court simply observed that sometimes context weighs against the application of the rule of the last antecedent. Barnhart, 540 U.S., at 26, 124 S.Ct. 376. Whether a modifier is "applicable as much to the first... as to the last" words in a list, whether a set of items form a "single, integrated list," and whether the application of the rule would require acceptance of an "unlikely premise" are fundamentally contextual questions.
Lockhart attempts to identify contextual indicia that he says rebut the rule of the last antecedent, but those indicia hurt rather than help his prospects. He points out that the final two state predicates, "sexual abuse" and "abusive sexual conduct," are "nearly synonymous as a matter of everyday speech." Brief for Petitioner 17. And, of course, anyone who commits "aggravated sexual abuse" has also necessarily committed "sexual abuse." So, he posits, the items in the list are sufficiently similar that a limiting phrase could apply equally to all three of them.
But Lockhart's effort to demonstrate some similarity among the items in the list of state predicates reveals far too much similarity. The three state predicate crimes are not just related on Lockhart's reading; they are hopelessly redundant. Any conduct that would qualify as "aggravated sexual abuse... involving a minor or ward" or "sexual abuse... involving a minor or ward" would also qualify as "abusive sexual conduct involving a minor or ward." We take no position today on the meaning of the terms "aggravated sexual abuse," "sexual abuse," and "abusive sexual conduct," including their similarities and differences. But it is clear that applying the limiting phrase to all three items would risk running headlong into the rule against superfluity by transforming a list of separate predicates into a set of synonyms describing the same predicate. See Bailey v. United States, 516 U.S. 137, 146, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ("We assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning").
Applying the limiting phrase "involving a minor or ward" more sparingly, by contrast, preserves some distinction between the categories of state predicates by limiting only the third category to conduct "involving a minor or ward." We recognize that this interpretation does not eliminate all superfluity between "aggravated sexual abuse" and "sexual abuse." See United States v. Atlantic Research Corp., 551 U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007) ( "[O]ur hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage"). But there is a ready explanation for the redundancy that remains: It follows the categories in Chapter 109A's federal template. See supra, at 964. We see no similar explanation for Lockhart's complete collapse of the list.
The dissent offers a suggestion rooted in its impressions about how people ordinarily speak and write. Post, at 969 - 971. The problem is that, as even the dissent acknowledges, § 2252(b)(2)'s list of state predicates is hardly intuitive. No one would mistake its odd repetition and inelegant phrasing for a reflection of the accumulated wisdom of everyday speech patterns. It would be as if a friend asked you to get her tart lemons, sour lemons, or sour fruit from Mexico. If you brought back lemons from California, but your friend insisted that she was using customary speech and obviously asked for Mexican fruit only, you would be forgiven for disagreeing on both counts.
Faced with § 2252(b)(2)'s inartful drafting, then, do we interpret the provision by viewing it as a clear, commonsense list best construed as if conversational English? Or do we look around to see if there might be some provenance to its peculiarity? With Chapter 109A so readily at hand, we are unpersuaded by our dissenting colleague's invocation of basic examples from day-to-day life. Whatever the validity of the dissent's broader point, this simply is not a case in which colloquial practice is of much use. Section 2252(b)(2)'s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.
B
Lockhart next takes aim at our construction of § 2252(b)(2) to avoid disparity between the state and federal sexual-abuse predicates. He contends that other disparities between state and federal predicates in § 2252(b)(2) indicate that parity was not Congress' concern. For example, § 2252(b)(2) imposes the recidivist enhancement on offenders with prior federal convictions under Chapter 71 of Title 18, which governs obscenity. See §§ 1461-1470. Yet § 2252(b)(2) does not impose a similar enhancement for offenses under state obscenity laws. Similarly, § 2252(b)(2)'s neighbor provision, § 2252(b)(1), creates a mandatory minimum for sex trafficking involving children, but not sex trafficking involving adults.
However, our construction of § 2252(b)(2)'s sexual-abuse predicates does not rely on a general assumption that Congress sought full parity between all of the federal and state predicates in § 2252(b)(2). It relies instead on contextual cues particular to the sexual-abuse predicates. To enumerate the state sexual-abuse predicates, Congress used language similar to that in Chapter 109A of the Federal Criminal Code, which describes crimes involving both adults and children. See supra, at 964. We therefore assume that the same language used to describe the state sexual-abuse predicates also describes conduct involving both adults and children.
C
Lockhart, joined by the dissent, see post, at 973 - 974, next says that the provision's legislative history supports the view that Congress deliberately structured § 2252(b)(2) to treat state and federal predicates differently. They rely on two sources. The first is a reference in a Report from the Senate Judiciary Committee on the Child Pornography Prevention Act of 1996, 110 Stat. 3009-26. That Act was the first to add the language at issue here-"aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward"-to the U.S. Code. (It was initially added to § 2252(b)(1), then added two years later to § 2252(b)(2) ).
The Report noted that the enhancement applies to persons with prior convictions "under any State child abuse law or law relating to the production, receipt or distribution of child pornography." See S.Rep. No. 104-358, p. 9 (1996). But that reference incompletely describes the state pornography production and distribution predicates, which cover not only "production, receipt, or distributing of child pornography," as the Report indicates, but also "production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography," § 2252(b)(2). For the reasons discussed, we have no trouble concluding that the Report also incompletely describes the state sexual-abuse predicates.
Lockhart and the dissent also rely on a letter sent from the Department of Justice (DOJ) to the House of Representative's Committee on the Judiciary commenting on the proposed "Child Protection and Sexual Predator Punishment Act of 1998." H.R.Rep. No. 105-557, pp. 26-34 (1998). In the letter, DOJ provides commentary on the then-present state of §§ 2252(b)(1) and 2252(b)(2), noting that although there is a "5-year mandatory minimum sentence for individuals charged with receipt or distribution of child pornography and who have prior state convictions for child molestation" pursuant to § 2252(b)(1), there is "no enhanced provision for those individuals charged with possession of child pornography who have prior convictions for child abuse" pursuant to § 2252(b)(2). Id., at 31. That letter, they say, demonstrates that DOJ understood the language at issue here to impose a sentencing enhancement only for prior state convictions involving children.
We doubt that DOJ was trying to describe the full reach of the language in § 2252(b)(1), as the dissent suggests. To the contrary, there are several clues that the letter was relaying on just one of the provision's many salient features. For instance, the letter's references to "child molestation" and "child abuse" do not encompass a large number of state crimes that are unambiguously covered by "abusive sexual conduct involving a minor or ward"-namely, crimes involving "wards." Wards can be minors, but they can also be adults. See, e.g., § 2243(b) (defining "wards" as persons who are "in official detention" and "under... custodial, supervisory, or disciplinary authority"). Moreover, we doubt that DOJ intended to express a belief that the potentially broad scope of serious crimes encompassed by "aggravated sexual abuse, sexual abuse, and abusive sexual conduct" reaches no further than state crimes that would traditionally be characterized as "child molestation" or "child abuse."
Thus, Congress' amendment to the provision did give "DOJ just what it wanted," post, at 973. But the amendment also did more than that. We therefore think it unnecessary to restrict our interpretation of the provision to the parts of it that DOJ chose to highlight in its letter. Just as importantly, the terse descriptions of the provision in the Senate Report and DOJ letter do nothing to explain why Congress would have wanted to apply the mandatory minimum to individuals convicted in federal court of sexual abuse or aggravated sexual abuse involving an adult, but not to individuals convicted in state court of the same. The legislative history, in short, "hardly speaks with [a] clarity of purpose" through which we can discern Congress' statutory objective. Universal Camera Corp. v. NLRB, 340 U.S. 474, 483, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
The best explanation Lockhart can muster is a basic administrability concern: Congress "knew what conduct it was capturing under federal law and could be confident that all covered federal offenses were proper predicates. But Congress did not have the same familiarity with the varied and mutable sexual-abuse laws of all fifty states." Brief for Petitioner 27. Perhaps Congress worried that state laws punishing relatively minor offenses like public lewdness or indecent exposure involving an adult would be swept into § 2252(b)(2). Id., at 28. But the risk Lockhart identifies is minimal. Whether the terms in § 2252(b)(2) are given their "generic" meaning, see Descamps v. United States, 570 U.S. ----, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), or are defined in light of their federal counterparts-which we do not decide-they are unlikely to sweep in the bizarre or unexpected state offenses that worry Lockhart.
D
Finally, Lockhart asks us to apply the rule of lenity. We have used the lenity principle to resolve ambiguity in favor of the defendant only "at the end of the process of construing what Congress has expressed" when the ordinary canons of statutory construction have revealed no satisfactory construction. Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). That is not the case here. To be sure, Lockhart contends that if we applied a different principle of statutory construction-namely, his "series-qualifier principle"-we would arrive at an alternative construction of § 2252(b)(2). But the arguable availability of multiple, divergent principles of statutory construction cannot automatically trigger the rule of lenity. Cf. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 401 (1950) ("[T]here are two opposing canons on almost every point"). Here, the rule of the last antecedent is well supported by context and Lockhart's alternative is not. We will not apply the rule of lenity to override a sensible grammatical principle buttressed by the statute's text and structure.
* * *
We conclude that the text and structure of § 2252(b)(2) confirm that the provision applies to prior state convictions for "sexual abuse" and "aggravated sexual abuse," whether or not the convictions involved a minor or ward. We therefore hold that Lockhart's prior conviction for sexual abuse of an adult is encompassed by § 2252(b)(2). The judgment of the Court of Appeals, accordingly, is affirmed.
So ordered.
Justice KAGAN, with whom Justice BREYER joins, dissenting.
Imagine a friend told you that she hoped to meet "an actor, director, or producer involved with the new Star Wars movie." You would know immediately that she wanted to meet an actor from the Star Wars cast-not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client "a house, condo, or apartment in New York." Wouldn't the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the "violation of any statute, rule, or regulation relating to insider trading." Surely a person would have cause to protest if punished under that provision for violating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase-"involved with the new Star Wars movie," "in New York," "relating to insider trading"-applies to each term in the preceding list, not just the last.
That ordinary understanding of how English works, in speech and writing alike, should decide this case. Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." 18 U.S.C. § 2252(b)(2). The Court today, relying on what is called the "rule of the last antecedent," reads the phrase "involving a minor or ward" as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms-just as in the examples above. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart's prior conviction for sexual abuse of an adult does not trigger § 2252(b)(2)'s mandatory minimum penalty. I respectfully dissent.
I
Begin where the majority does-with the rule of the last antecedent. See ante, at 962. This Court most fully discussed that principle in Barnhart v. Thomas, 540 U.S. 20, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003), which considered a statute providing that an individual qualifies as disabled if "he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id., at 21-22, 124 S.Ct. 376 (quoting 42 U.S.C. § 423(d)(2)(A) ) (emphasis added). The Court held, invoking the last-antecedent rule, that the italicized phrase modifies only the term "substantial gainful work," and not the term "previous work" occurring earlier in the sentence. Two points are of especial note. First, Barnhart contained a significant caveat: The last-antecedent rule "can assuredly be overcome by other indicia of meaning." 540 U.S., at 26, 124 S.Ct. 376 ; see, e.g., Nobelman v. American Savings Bank, 508 U.S. 324, 330-331, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (refusing to apply the rule when a contrary interpretation was "the more reasonable one"). Second, the grammatical structure of the provision in Barnhart is nothing like that of the statute in this case: The modifying phrase does not, as here, immediately follow a list of multiple, parallel terms. That is true as well in the other instances in which this Court has followed the rule. See, e.g., Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) ; Batchelor v. United States, 156 U.S. 426, 15 S.Ct. 446, 39 L.Ed. 478 (1895) ; Sims Lessee v. Irvine, 3 Dall. 425, 1 L.Ed. 665 (1799).
Indeed, this Court has made clear that the last-antecedent rule does not generally apply to the grammatical construction present here: when "[t]he modifying clause appear[s]... at the end of a single, integrated list." Jama, 543 U.S., at 344, n. 4, 125 S.Ct. 694. Then, the exact opposite is usually true: As in the examples beginning this opinion, the modifying phrase refers alike to each of the list's terms. A leading treatise puts the point as follows: "When there is a straightforward, parallel construction that involves all nouns or verbs in a series," a modifier at the end of the list "normally applies to the entire series." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012); compare id., at 152 ("When the syntax involves something other than [such] a parallel series of nouns or verbs," the modifier "normally applies only to the nearest reasonable referent"). That interpretive practice of applying the modifier to the whole list boasts a fancy name-the "series-qualifier canon," see Black's Law Dictionary 1574 (10th ed. 2014)-but, as my opening examples show, it reflects the completely ordinary way that people speak and listen, write and read.
Even the exception to the series-qualifier principle is intuitive, emphasizing both its common-sensical basis and its customary usage. When the nouns in a list are so disparate that the modifying clause does not make sense when applied to them all, then the last-antecedent rule takes over. Suppose your friend told you not that she wants to meet "an actor, director, or producer involved with Star Wars," but instead that she hopes someday to meet "a President, Supreme Court Justice, or actor involved with Star Wars." Presumably, you would know that she wants to meet a President or Justice even if that person has no connection to the famed film franchise. But so long as the modifying clause "is applicable as much to the first and other words as to the last," this Court has stated, "the natural construction of the language demands that the clause be read as applicable to all." Paroline v. United States, 572 U.S. ----, ----, 134 S.Ct. 1710, 1721, 188 L.Ed.2d 714 (2014) (quoting Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920) ). In other words, the modifier then qualifies not just the last antecedent but the whole series.
As the majority itself must acknowledge, see ante, at 964 - 965, this Court has repeatedly applied the series-qualifier rule in just that manner. In Paroline, for example, this Court considered a statute requiring possessors of child pornography to pay restitution to the individuals whose abuse is recorded in those materials. The law defines such a victim's losses to include "medical services relating to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; attorneys' fees, as well as other costs incurred; and any other losses suffered by the victim as a proximate result of the offense." 18 U.S.C. §§ 2259(b)(3)(A)-(F) (lettering omitted). The victim bringing the lawsuit invoked the last-antecedent rule to argue that the modifier at the end of the provision-"as a proximate result of the offense"-pertained only to the last item in the preceding list, and not to any of the others. See 572 U.S., at ----, 134 S.Ct., at 1721. But the Court rejected that view: It recited the "canon[ ] of statutory construction," derived from the "natural" use of language, that "[w]hen several words are followed by a clause" that can sensibly modify them all, it should be understood to do so. Ibid. Thus, the Court read the proximate-cause requirement to cover each and every term in the list.
United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), to take just one other example, followed the same rule. There, the Court confronted a statute making it a crime for a convicted felon to "receive [ ], possess[ ], or transport[ ] in commerce or affecting commerce... any firearm." 18 U.S.C.App. § 1202(a) (1970 ed.) (current version at 18 U.S.C. § 922(g) ). The Government contended that the modifying clause-"in commerce or affecting commerce"-applied only to "transport" and not to "receive" or "possess." But the Court rebuffed that argument. "[T]he natural construction of the language," the Court recognized, "suggests that the clause 'in commerce or affecting commerce' qualifies all three antecedents in the list." 404 U.S., at 339, 92 S.Ct. 515 (some internal quotation marks omitted). Relying on longstanding precedents endorsing such a construction, the Court explained: "Since 'in commerce or affecting commerce' undeniably applies to at least one antecedent, and since it makes sense with all three, the more plausible construction here is that it in fact applies to all three." Id., at 339-340, 92 S.Ct. 515 (citing United States v. Standard Brewery, Inc., 251 U.S. 210, 218, 40 S.Ct. 139, 64 L.Ed. 229 (1920) ; Porto Rico Railway, 253 U.S., at 348, 40 S.Ct. 516 ); see also, e.g., Jones v. United States, 529 U.S. 848, 853, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (similarly treating the interstate commerce element in the phrase "any building, vehicle, or other real or personal property used in interstate or foreign commerce" as applying to buildings and vehicles).
That analysis holds equally for § 2252(b)(2), the sentencing provision at issue here. The relevant language-"aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward"-contains a "single, integrated list" of parallel terms (i.e., sex crimes) followed by a modifying clause. Jama, 543 U.S., at 344, n. 4, 125 S.Ct. 694. Given the close relation among the terms in the series, the modifier makes sense "as much to the first and other words as to the last." Paroline, 572 U.S., at ----, 134 S.Ct., at 1721. In other words, the reference to a minor or ward applies as well to sexual abuse and aggravated sexual abuse as to abusive sexual conduct. (The case would be different if, for example, the statute established a mandatory minimum for any person previously convicted of "arson, receipt of stolen property, or abusive sexual conduct involving a minor or ward.") So interpreting the modifier "as applicable to all" the preceding terms is what "the natural construction of the language" requires. Ibid. ; Bass, 404 U.S., at 339, 92 S.Ct. 515.
The majority responds to all this by claiming that the "inelegant phrasing" of § 2252(b)(2) renders it somehow exempt from a grammatical rule reflecting "how people ordinarily" use the English language. Ante, at 966. But to begin with, the majority is wrong to suggest that the series-qualifier canon is only about "colloquial" or "conversational" English. Ibid. In fact, it applies to both speech and writing, in both their informal and their formal varieties. Here is a way to test my point: Pick up a journal, or a book, or for that matter a Supreme Court opinion-most of which keep "everyday" colloquialisms at a far distance. Ibid. You'll come across many sentences having the structure of the statutory provision at issue here: a few nouns followed by a modifying clause. And you'll discover, again and yet again, that the clause modifies every noun in the series, not just the last-in other words, that even (especially?) in formal writing, the series-qualifier principle works. And the majority is wrong too in suggesting that the "odd repetition" in § 2252(b)(2)'s list of state predicates causes the series-qualifier principle to lose its force. Ibid. The majority's own made-up sentence proves that much. If a friend asked you "to get her tart lemons, sour lemons, or sour fruit from Mexico," you might well think her list of terms perplexing: You might puzzle over the difference between tart and sour lemons, and wonder why she had specifically mentioned lemons when she apparently would be happy with sour fruit of any kind. But of one thing, you would have no doubt: Your friend wants some produce from Mexico ; it would not do to get her, say, sour lemons from Vietnam. However weird the way she listed fruits-or the way § 2252(b)(2) lists offenses-the modifying clause still refers to them all.
The majority as well seeks refuge in the idea that applying the series-qualifier canon to § 2252(b)(2) would violate the rule against superfluity. See ante, at 965 - 966. Says the majority: "Any conduct that would qualify as 'aggravated sexual abuse... involving a minor or ward' or'sexual abuse... involving a minor or ward' would also qualify as 'abusive sexual conduct involving a minor or ward.' " Ante, at 965. But that rejoinder doesn't work. "[T]he canon against superfluity," this Court has often stated, "assists only where a competing interpretation gives effect to every clause and word of a statute." Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91, 106, 131 S.Ct. 2238, 180 L.Ed.2d 131 (2011) (internal quotation marks omitted); see, e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236, 131 S.Ct. 1068, 179 L.Ed.2d 1 (2011). And the majority's approach (as it admits, see ante, at 965) produces superfluity too-and in equal measure. Now (to rearrange the majority's sentence) any conduct that would qualify as "abusive sexual conduct involving a minor or ward" or "aggravated sexual abuse" would also qualify as "sexual abuse." In other words, on the majority's reading as well, two listed crimes become subsets of a third, so that the three could have been written as one. And indeed, the majority's superfluity has an especially odd quality, because it relates to the modifying clause itself: The majority, that is, makes the term "involving a minor or ward" wholly unnecessary. Remember the old adage about the pot and the kettle? That is why the rule against superfluity cannot excuse the majority from reading § 2252(b)(2)'s modifier, as ordinary usage demands, to pertain to all the terms in the preceding series.
II
Legislative history confirms what the natural construction of language shows: Each of the three predicate offenses at issue here must involve a minor. The list of those crimes appears in two places in § 2252(b) -both in § 2252(b)(1), which contains a sentencing enhancement for those convicted of distributing or receiving child pornography, and in § 2252(b)(2), which includes a similar enhancement for those (like Lockhart) convicted of possessing such material. Descriptions of that list of offenses, made at the time Congress added it to those provisions, belie the majority's position.
The relevant language-again, providing for a mandatory minimum sentence if a person has a prior state-law conviction for "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward"-first made its appearance in 1996, when Congress inserted it into § 2252(b)(1). See Child Pornography Prevention Act of 1996, § 121(5), 110 Stat. 3009-30, 18 U.S.C. § 2251 note. At that time, the Senate Report on the legislation explained what the new language meant: The mandatory minimum would apply to an "offender with a prior conviction under... any State child abuse law." S.Rep. No. 104-358, p. 9 (1996) (emphasis added). It is hard to imagine saying any more directly that the just-added state sexual-abuse predicates all involve minors, and minors only.
Two years later, in urging Congress to include the same predicate offenses in § 2252(b)(2), the Department of Justice (DOJ) itself read the list that way. In a formal bill comment, DOJ noted that proposed legislation on child pornography failed to fix a statutory oddity: Only § 2252(b)(1), and not § 2252(b)(2), then contained the state predicates at issue here. DOJ described that discrepancy as follows: Whereas § 2252(b)(1) provided a penalty enhancement for "individuals charged with receipt or distribution of child pornography and who have prior state convictions for child molestation, " the adjacent § 2252(b)(2) contained no such enhancement for those "charged with possession of child pornography who have prior convictions for child abuse." H.R.Rep. No. 105-557, p. 31 (1998) (emphasis added). That should change, DOJ wrote: A possessor of child pornography should also be subject to a 2-year mandatory minimum if he had "a prior conviction for sexual abuse of a minor." Ibid. (emphasis added). DOJ thus made clear that the predicate offenses it recommended adding to § 2252(b)(2) -like those already in § 2252(b)(1) -related not to all sexual abuse but only to sexual abuse of children. And Congress gave DOJ just what it wanted: Soon after receiving the letter, Congress added the language at issue to § 2252(b)(2), resulting in the requested 2-year minimum sentence. See Protection of Children From Sexual Predators Act of 1998, § 202(a)(2), 112 Stat. 2977, 18 U.S.C. § 1 note. So every indication, in 1998 no less than in 1996, was that all the predicate crimes relate to children alone.
The majority's response to this history fails to blunt its force. According to the majority, the reference to "any state child abuse law" in the Senate Report is simply an "incomplete[ ] descri[ption]" of "the state sexual-abuse predicates." Ante, at 967. And similarly, the majority ventures, the DOJ letter was merely noting "one of the provision's many salient features." Ibid. But suppose that you (like the Senate Report's or DOJ letter's authors) had to paraphrase or condense the statutory language at issue here, and that you (like the majority) thought it captured all sexual-abuse crimes. Would you then use the phrase "any state child abuse law" as a descriptor (as the Senate Report did)? And would you refer to the whole list of state predicates as involving "sexual abuse of a minor" (as the DOJ letter did)? Of course not. But you might well use such shorthand if, alternatively, you understood the statutory language (as I do) to cover only sexual offenses against children. And so the authors of the Report and letter did here. Such documents of necessity abridge statutory language; but they do not do so by conveying an utterly false impression of what that language is most centrally about-as by describing a provision that (supposedly) covers all sexual abuse as one that reaches only child molestation.
Further, the majority objects that the Senate Report's (and DOJ letter's) drafters did "nothing to explain why " Congress would have limited § 2252(b)'s state sexual-abuse predicates to those involving children when the provision's federal sexual-abuse predicates (as all agree) are not so confined. Ante, at 967 (emphasis in original). But Congress is under no obligation to this Court to justify its choices. (Nor is DOJ obliged to explain them to Congress itself.) Rather, the duty is on this Court to carry out those decisions, regardless of whether it understands all that lay behind them. The Senate Report (and DOJ letter too) says what it says about § 2252(b)'s meaning, confirming in no uncertain terms the most natural reading of the statutory language. Explanation or no, that is more than sufficient.
And the majority (as it concedes) cannot claim that Congress simply must have wanted § 2252(b)(2)'s federal and state predicates to be the same. See ante, at 966 ("[O]ur construction of § 2252(b)(2)'s sexual-abuse predicates does not rely on a general assumption that Congress sought full parity between all of the federal and state predicates"). That is because both § 2252(b)(1) and § 2252(b)(2) contain many federal predicates lacking state matches. Under § 2252(b)(1), for example, a person is subject to a mandatory minimum if he previously violated 18 U.S.C. § 1591, which prohibits "[s]ex trafficking of children or [sex trafficking] by force, fraud, or coercion." But if the prior conviction is under state law, only sex trafficking of children will trigger that minimum; trafficking of adults, even if by force, fraud, or coercion, will not. That mismatch-trafficking of both adults and children on the federal side, trafficking of children alone on the state side-precisely parallels my view of the sexual-abuse predicates at issue here. More generally, ten federal obscenity crimes trigger both § 2252(b)(1)'s and § 2252(b)(2)'s enhanced punishments; but equivalent state crimes do not do so. And five federal prostitution offenses prompt mandatory minimums under those provisions; but no such state offenses do. Noting those disparities, the Government concedes: "[W]hen Congress adds state-law offenses to the lists of predicate offenses triggering child-pornography recidivist enhancements, it sometimes adds state offenses corresponding to only a subset of the federal offenses" previously included. Brief for United States 43. Just so. And this Court ought to enforce that choice.
III
As against the most natural construction of § 2252(b)(2)'s language, plus unusually limpid legislative history, the majority relies on a structural argument. See ante, at 963 - 965. The federal sexual-abuse predicates in § 2252(b)(2), the majority begins, are described as crimes "under... Chapter 109A," and that chapter "criminalizes a range of sexual-abuse offenses involving adults or minors." Ante, at 963 - 964 (emphasis in original). Once again, the majority cannot say that this fact alone resolves the question presented, given the many times (just discussed) that Congress opted to make federal crimes, but not equivalent state crimes, predicates for § 2252(b)(2)'s mandatory minimums. But the majority claims to see more than that here: The headings of the sections in Chapter 109A, it contends, "mirror precisely the order... and nearly precisely the words used to describe" the state predicate crimes at issue. Ante, at 964. The majority "cannot state with certainty," but hazards a guess that Congress thus used Chapter 109A "as a template for the list of state predicates"-or, otherwise said, that Congress "followed" the "structure and language of Chapter 109A" in defining those state-law offenses. Ibid.
But § 2252(b)(2)'s state predicates are not nearly as similar to the federal crimes in Chapter 109A as the majority claims. That Chapter includes the following offenses: "Aggravated sexual abuse," § 2241, "Sexual abuse," § 2242, "Sexual abuse of a minor or ward," § 2243, and "Abusive sexual contact," § 2244. The Chapter thus contains four crimes-one more than found in § 2252(b)(2)'s list of state offenses. If the drafters of § 2252(b)(2) meant merely to copy Chapter 109A, why would they have left out one of its crimes? The majority has no explanation. And there is more. Suppose Congress, for whatever hard-to-fathom reason, wanted to replicate only Chapter 109A's first three offenses. It would then have used the same language, referring to "the laws of any State relating to aggravated sexual abuse, sexual abuse, or sexual abuse of a minor or ward." (And had Congress used that language, the phrase "of a minor or ward" would clearly have applied only to the third term, to differentiate it from the otherwise identical second.) But contra the majority, see ante, at 964, 965 - 966, that is not what § 2252(b)(2)'s drafters did. Rather than repeating the phrase "sexual abuse," they used the phrase "abusive sexual conduct" in the list's last term-which echoes, if anything, the separate crime of "abusive sexual contact" (included in Chapter 109A's fourth offense, as well as in other places in the federal code, see, e.g., 10 U.S.C. § 920(d) ). The choice of those different words indicates, yet again, that Congress did not mean, as the majority imagines, to duplicate Chapter 109A's set of offenses.
Indeed, even the Government has refused to accept the notion that the federal and state sexual-abuse predicates mirror each other. The Government, to be sure, has argued that it would be "anomalous" if federal, but not state, convictions for sexually abusing adults trigger § 2252(b)(2)'s enhanced penalty. Brief for United States 23. (I have discussed that more modest point above: Anomalous or not, such differences between federal and state predicates are a recurring feature of the statute. See supra, at 967 - 968.) But the Government, in both briefing and argument, rejected the idea that Congress wanted the list of state predicates in § 2252(b)(2) to mimic the crimes in Chapter 109A; in other words, it denied that Congress meant for the state and federal offenses to bear the same meaning. See Brief for United States 22, n. 8; Tr. of Oral Arg. 26. Even in the face of sustained questioning from Members of this Court, the Government held fast to that position. See, e.g., Tr. of Oral Arg. 25-26 (Justice ALITO: "[W]hy do you resist the argument that what Congress was doing was picking up basically the definitions of the Federal offenses [in Chapter 109A] that are worded almost identically?" Assistant to the Solicitor General: "[W]e don't think that Congress was trying" to do that). The listed state and federal offenses, the Government made clear, are not intended to be copies.
The majority seems to think that view somehow consistent with its own hypothesis that Chapter 109A served as a "template" for § 2252(b)(2)'s state predicates, ante, at 964; in responding to one of Lockhart's arguments, the majority remarks that the state predicates might have a "generic" meaning, distinct from Chapter 109A's, ante, at 968. But if that is so, the majority's supposed template is not much of a template after all. The predicate state offenses would "follow" or "parallel" Chapter 109A in a single respect, but not in any others-that is, in including sexual abuse of adults, but not in otherwise defining wrongful sexual conduct (whether concerning adults or children). Ante, at 964. The template, one might say, is good for this case and this case only. And the majority has no theory for why that should be so: It offers not the slimmest explanation of how Chapter 109A can resolve today's question but not the many issues courts will face in the future involving the meaning of § 2252(b)(2)'s state predicate offenses. That is because no rationale would make sense. The right and consistent view is that Chapter 109A, like the other federal predicates in § 2252(b)(2), is across-the-board irrelevant in defining that provision's state predicates. Thus, the federal chapter's four differently worded crimes are independent of the three state offenses at issue here-all of which, for the reasons I've given, must "involv[e] a minor or ward."
IV
Suppose, for a moment, that this case is not as clear as I've suggested. Assume there is no way to know whether to apply the last-antecedent or the series-qualifier rule. Imagine, too, that the legislative history is not quite so compelling and the majority's "template" argument not quite so strained. Who, then, should prevail?
This Court has a rule for how to resolve genuine ambiguity in criminal statutes: in favor of the criminal defendant. As the majority puts the point, the rule of lenity insists that courts side with the defendant "when the ordinary canons of statutory construction have revealed no satisfactory construction." Ante, at 968 (citing Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) ); see also Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (holding that the rule of lenity "applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose"). At the very least, that principle should tip the scales in Lockhart's favor, because nothing the majority has said shows that the modifying clause in § 2252(b)(2)unambiguously applies to only the last term in the preceding series.
But in fact, Lockhart's case is stronger. Consider the following sentence, summarizing various points made above: "The series-qualifier principle, the legislative history, and the rule of lenity discussed in this opinion all point in the same direction." Now answer the following question: Has only the rule of lenity been discussed in this opinion, or have the series-qualifier principle and the legislative history been discussed as well? Even had you not read the preceding 16-plus pages, you would know the right answer-because of the ordinary way all of us use language. That, in the end, is why Lockhart should win.
For example, § 2241(a) of Chapter 109A prohibits forced sexual acts against "another person"-not just a person under a certain age. Section 2241(c) specially criminalizes sexual acts "with another person who has not attained the age of 12 years," and § 2243(b) does the same for sexual acts with wards who are "in official detention" or "under the custodial, supervisory, or disciplinary authority of the person so engaging."
See 18 U.S.C. § 2241 (1994 ed.) ("Aggravated sexual abuse"); § 2242 ("Sexual abuse"); § 2243 ("Sexual abuse of a minor or ward").
The dissent points out that § 2252(b)(2) (2012 ed.) did not also borrow from the heading of the fourth section in Chapter 109A (or, we note, from the fifth, sixth, seventh, or eighth sections) in defining its categories of state sexual-abuse predicates. Post, at 968 - 969 (KAGAN, J. dissenting). But the significance of the similarity between the three state predicates in § 2252(b)(2) and the wording, structure, and order of the first three sections of Chapter 109A is not diminished by the fact that Congress stopped there (especially when the remaining sections largely set out derivations from, definitions of, and penalties for the first three). See, e.g., § 2244 (listing offenses derived from §§ 2241, 2242, and 2243 ); § 2245 (creating an enhancement for offenses under Chapter 109A resulting in death); § 2246 (listing definitions).
The majority's baseball example, see ante, at 963, reads the other way only because its three terms are not parallel. The words "catcher" and "shortstop," but not "pitcher," are qualified separate and apart from the modifying clause at the end of the sentence: "Pitcher" thus calls for a modifier of its own, and the phrase "from the Kansas City Royals" answers that call. Imagine the sentence is slightly reworded to refer to a "defensive catcher, quick-footed shortstop, or hard-throwing pitcher from the Kansas City Royals." Or, alternatively, suppose the sentence referred simply to a "catcher, shortstop, or pitcher from the Kansas City Royals." Either way, all three players must come from the Royals-because the three terms (unlike in the majority's sentence) are a parallel series with a modifying clause at the end.
Too busy to carry out this homework assignment? Consider some examples (there are many more) from just the last few months of this Court's work. In OBB Personenverkehr AG v. Sachs, 577 U.S. ----, ----, 136 S.Ct. 390, 395, 193 L.Ed.2d 269 (2015), this Court described a lawsuit as alleging "wrongful arrest, imprisonment, and torture by Saudi police." In James v. Boise, 577 U.S. ----, ----, 136 S.Ct. 685, 686-687, ---L.Ed.2d ---- (2016) (per curiam ) (quoting Martin v. Hunter's Lessee, 1 Wheat. 304, 348, 4 L.Ed. 97 (1816) ), this Court affirmed that state courts must follow its interpretations of "the laws, the treaties, and the constitution of the United States." In Musacchio v. United States, 577 U.S. ----, ----, 136 S.Ct. 709, 715, --- L.Ed.2d ---- (2016) (quoting Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ), this Court noted that in interpreting statutes it looks to the "text, context, and relevant historical treatment of the provision at issue. " In FERC v. Electric Power Supply Assn., 577 U.S. ----, ----, 136 S.Ct. 760, 774, --- L.Ed.2d ---- (2016), this Court applied a statute addressing "any rule, regulation, practice, or contract affecting [a wholesale] rate [or] charge." And in Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577 U.S. ----, ----, 136 S.Ct. 651, 655, --- L.Ed.2d ---- (2016), this Court interpreted an employee benefits plan requiring reimbursement "for attorneys' fees, costs, expenses or damages claimed by the covered person." In each case, of course, the italicized modifying clause refers to every item in the preceding list. That is because the series-qualifier rule reflects how all of us use language, in writing and in speech, in formal and informal contexts, all the time.
The majority asserts that it has found, concealed within § 2252(b)(2)'s structure, an "explanation" for its own superfluity, ante, at 965, but that claim, as I'll soon show, collapses on further examination. See infra, at 975 - 977.
And it makes no difference that the Senate Report accompanied § 2252(b)(1)'s, rather than § 2252(b)(2)'s, amendment. No one can possibly think (and the majority therefore does not try to argue) that the disputed language means something different in
Question: What is the court whose decision the Supreme Court reviewed?
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Answer: |
songer_usc1 | 15 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
WILDER ENTERPRISES, INC., a Virginia Corporation, Appellant, v. ALLIED ARTISTS PICTURES CORPORATION, American International Pictures, Inc., Avco Embassy Pictures Corporation, Buena Vista Distribution Company, Inc., Columbia Pictures Industries, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corporation, United Artists Corporation, Universal Film Exchanges, Inc., Warner Brothers Distributing Corporation, ABC Southeastern Theatres, Inc., General Cinema. Corporation of Virginia, Inc., American Multi-Cinema, Inc., Appellees, and Metro-Goldwyn Mayer, Inc., General Cinema Corporation, Defendants.
No. 79-1175.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 10, 1980.
Decided Oct. 3, 1980.
Stanley E. Sacks, Norfolk, Va. (Girard C. Larkin, Jr., William L. Perkins, III, Sacks, Sacks & Perkins, Norfolk, Va., on brief), for appellant.
Lewis T. Booker, Richmond, Va. (William F. Young, L. Neal Ellis, Jr., Hunton & Williams, Richmond, Va., Daniel R. Murdock, Donovan, Leisure, Newton & Irvine, New York City, Robert M. Hughes, III, Seawell, McCoy, Dalton, Hughes, Gore & Timms, Norfolk, Va., on brief), for distributors appellees.
Norman G. Knopf, Washington, D. C. (Warren L. Lewis, Bergson, Borkland, Margolis & Adler, Washington, D. C., Thomas J. Harlan, Jr., William M. Sexton, Doumar, Pincus, Knight & Harlan, Richard B. Spindle, III, Thomas G. Johnson, Jr., Guy R. Friddell, III, Willcox, Savage, Lawrence, Dickson & Spindle, P. C., Norfolk, Va., on brief), for exhibitors appellees.
Before BUTZNER and WIDENER, Circuit Judges, and ROBERT J. ST AKER, United States District Judge for the Southern District of West Virginia, sitting by designation.
. The necessary elements for recovery under § 1 of the Act are: (1) an agreement, conspiracy, or combination among the defendants in restraint of trade; (2) injury to the plaintiffs business and property as a direct result; (3) damages that are capable of reasonable ascertainment and are not speculative or conjectural. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 883-84 (8th Cir. 1978).
An attempt to monopolize or a conspiracy to monopolize the exhibition of first-run films in a geographic area of effective competition satisfies the relevant product and market requirements of § 2 of the Act. United States v. Paramount Pictures, Inc., 334 U.S. 131, 172-73, 68 S.Ct. 915, 936-37, 92 L.Ed. 1260 (1948).
BUTZNER, Circuit Judge:
In this antitrust case, Wilder Enterprises, Inc., a movie exhibitor, appeals from an order of the district court directing a verdict for three competing exhibitors and ten national film distributors at the close of Wilder’s evidence. Wilder charges that the appellees deprived it of first-run films and caused the closure of its theaters by entering into an agreement to allocate first-run films in violation of the Sherman Act. 15 U.S.C. §§ 1 and 2. Viewing the evidence and all reasonable inferences that can be drawn from it in the light most favorable to Wilder, we conclude that the judgment in favor of the three exhibitors and six of the distributors must be vacated. There is sufficient proof against them to warrant submission of the case to a jury. We affirm the judgment in favor of the other appellees.
I
The exhibitor appellees are General Cinema Corporation of Virginia, Inc. (General), American Multi-Cinema, Inc. (AMC), and ABC Southeastern (ABC). They are chain or circuit exhibitors who operate in many markets, including Norfolk-Virginia Beach.
The distributor appellees, whose judgments we affirm, are Allied Artists Pictures Corporation, American International Pictures, Inc., Avco Embassy Pictures Corporation, and Buena Vista Distribution Company, Inc. We vacate the judgments in favor of Columbia Pictures Industries, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corporation, United Artists Corporation, Universal Film Exchange, Inc., and Warner Brothers Distributing Corporation. These companies are national distributors, who license first-run films by soliciting bids or offers to negotiate from exhibitors in specific geographic markets. Frequently, the distributors’ solicitation letters contain suggested minimum terms.
Wilder is an independent film exhibitor, who operated two theaters in the Norfolk-Virginia Beach market. Before 1971 it had no trouble acquiring first-run pictures from the distributors. Starting in 1971, however, Wilder’s efforts to obtain films met with less success although it continued to bid or negotiate as it had in the past. During 1971 and 1972 Wilder realized that its efforts to rent first-run films were futile. As a result, it responded to the distributors’ solicitations less frequently and began showing x-rated movies. From 1973 until its theaters closed in 1975, only one film distributed by an appellee was licensed to its Norfolk-Virginia Beach theaters.
Wilder attributes the failure of its theaters to an agreement by the circuit exhibitors, ABC, AMC, and General to allocate among themselves the right to bid or negotiate for films offered by the distributors and to the participation of the distributors in this division of the market. This type of agreement is commonly known as a split or split of product. After initial denials, the exhibitors stipulated to the existence of the split and the method of its operation. The stipulation disclosed that periodically the exhibitors met and decided on the basis of rotation which of the three would bid or negotiate for a specific picture; the other two would refrain from competing.
Both the exhibitors and the distributors contend that the evidence is insufficient to establish either that the distributors participated in the split or that the split infringed on Wilder’s opportunity to compete. These contentions, which were sustained by the district court, are critical, and the following brief summary of the law pertaining to splits will place them in perspective.
Film distributors are free to refuse to license films to any exhibitor when their decisions are based on independent business judgment. United States v. Colgate, 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919); Lamb’s Patio Theatre v. Universal Film Exchanges, 582 F.2d 1068 (7th Cir. 1978). Moreover, an exhibitor does not have a claim against other film exhibitors who, without distributor involvement, “split” the films they will bid on. Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627 (E.D.N.C.1966), aff’d per curiam, 388 F.2d 987 (4th Cir. 1967). Accord, Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877 (8th Cir. 1978); Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17 (9th Cir. 1971); Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285 (3d Cir. 1963), aff’d per curiam by an equally divided court, 378 U.S. 123, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964); Brown v. Western Massachusetts Theatres, Inc., 288 F.2d 302 (1st Cir. 1961); Royster Drive-In Theatres v. American Broadcasting-Paramount Theatres, Inc., 268 F.2d 246 (2d Cir. 1959).
An exhibitor has a cause of action when distributors participate in the split and deny the exhibitor access to films. Such an arrangement creates an impermissible horizontal conspiracy among the exhibitors operating the split and a vertical conspiracy between them and the participating distributors. It is a type of group boycott that violates the antitrust laws. Klor’s v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). See Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17,19 (9th Cir. 1971); II E. Kintner, Federal Antitrust Law §§ 10.27-31 (1980). In short, Wilder must show that it was denied the opportunity to obtain films enjoyed by ABC, AMC, and General because the distributors participated in the split.
Only one independent exhibitor, K. W. Andrews, participated in the split. His complaint about his inability to get first-run pictures induced an officer of AMC to invite him to a meeting of the exhibitors engaged in the split. Although Andrews attended a number of meetings, he was not allowed to bid for exclusive licenses. Rather, he was permitted to bid on a day and date basis for any picture AMC got in the split. ABC and General declined to allow Andrews to play day and date any pictures they received in the split.
Andrews testified at length about the distributors’ involvement in the split. At one of the meetings, an AMC employee called a Universal official to check on the license terms Universal was requesting for High Plains Drifter. Universal had not yet sent bid solicitation letters to exhibitors in the market. The AMC employee stated that he had received the film in the split and asked if Andrews could play the picture day and date with AMC. Andrews talked with the Universal official who asked him if he had “been allowed in.” When Andrews gave an affirmative response, the official said Andrews would be allowed to play the film day and date with AMC if he could satisfy the $5,000 requested guarantee. Subsequently, when Universal sent its bid solicitation letter to all exhibitors in the market, it offered to license the film on a day and date basis. Eventually, it was licensed on those terms to AMC and Andrews. When Andrews participated in the split, bid solicitation letters for films split to AMC allowed offers to exhibit the film on a day and date basis.
The exhibitors also called distributors during split meetings to verify the release dates of pictures under consideration. If Andrews missed a split meeting, he would sometimes call the distributors to find out what films he had received in the split. Occasionally, the distributors would call him with the information. These conversations took place before bid solicitations were sent to all of the exhibitors in the market. On one such occasion an employee of Fox called Andrews to tell him that he and AMC had received Towering Inferno in the split and that the guarantee would be $50,000. Andrews said that he wasn’t positive he could pay the guarantee. Fox then sent out a solicitation letter offering to license the picture on a day and date basis. Andrews was told by a Fox employee that if he couldn’t pay the suggested guarantee, the picture would be licensed to AMC. When Andrews couldn’t furnish the guarantee, the bid solicitation was withdrawn and reissued on an exclusive basis. Fox licensed the picture to AMC alone. On another occasion, a Columbia employee informed Andrews, prior to the solicitation letter on The Last Detail, that Andrews and AMC had received that picture in the split. Andrews said that he could play the picture, and it was licensed to Andrews and AMC.
Another example of distributor participation in the split involved The Man With a Golden Gun. Prior to the time the bid solicitation was circulated, Andrews called an employee of United to inquire whether AMC got the picture and to inform him that Andrews was to play day and date. The employee said AMC had the picture and told Andrews the specifics as to play date, percentages, and hold over. United subsequently licensed the film to AMC and Andrews.
Andrews brought another independent exhibitor, Schoenfeld, to a split meeting, but the exhibitors objected to his participation. Schoenfeld also gave evidence of distributor participation in the split. He testified that he had called a Fox employee to ask about the availability of a picture, and the employee responded that he wasn’t sure when the picture would be available, but he would know after the next meeting of the “Norfolk Surgical Society.”
Schoenfeld testified that after he had been excluded from the split, “I received no first-run product. There was no way I could receive a product the way the system was operated.”
We conclude that this evidence was sufficient to submit to the jury the issue of the existence of a conspiracy among ABC, AMC, General, Columbia, Fox, Paramount, United Artists, Universal, and Warner to violate the Act. Factual differences distinguish this case from Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627 (E.D.N.C. 1966), aff’d per curiam, 388 F.2d 987 (4th Cir. 1967), and Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877 (8th Cir. 1978). In Seago there was no evidence of the distributors’ knowledge of the split. In Admiral, although the distributors knew of the split, they did not participate in it. Here, in contrast, there is direct and circumstantial evidence that these distributors participated in the split by subsequently circulating letters soliciting bids in conformity with the arrangements derived from the split. Most of the films were then licensed as split. This case also differs from Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285 (3d Cir. 1963), where the court emphasized: “There is no evidence that any exhibitor requesting participation in the split of product would have been excluded.” 320 F.2d at 293. Here, to the contrary, there is evidence that ABC, AMC, and General split the product among themselves and excluded others.
On cross examination Andrews testified that he had no knowledge of any agreement among the distributors to: (1) discriminate against any exhibitor; (2) maintain or raise minimum license fees; (3) select theaters for licensing; or (4) conduct sham bidding.
Andrews’s lack of knowledge about any agreement to violate the Act does not preclude submission of the issue to the jury. Rarely can a formal agreement among alleged conspirators be established, and proof of its existence is not essential. Frey & Son v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892 (1921); Unit ed States v. Paramount Pictures, Inc., 334 U.S. 131, 142, 68 S.Ct. 915, 922, 92 L.Ed. 1260 (1948). Andrews was cautioned by the district court not to testify about any conclusions he drew from the facts. A jury, however, is not similarly constrained. It is their function to draw reasonable inferences from the facts. Evidence of the course of dealing by the three exhibitors who operated the split and the distributors who participated with them is sufficient, if accepted by the jury, to establish the existence of a conspiracy to restrain and monopolize commerce in violation of the Act. Norfolk Monument Co., Inc. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 704, 89 S.Ct. 1391, 1393, 22 L.Ed.2d 658 (1969); American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 1138-39, 90 L.Ed. 1575 (1946).
There is neither direct nor circumstantial evidence that Allied, American, Avco, and Buena Vista participated in the split.
II
The second element Wilder must prove is that the split directly injured its business. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 893 (8th Cir. 1978). We conclude that the evidence was sufficient to submit this issue to the jury. Most first-run films were licensed as split. Independent exhibitors were excluded from the split and denied access to many of these films. After the split started in 1971, Wilder had difficulty obtaining these films, its profits decreased, and eventually its theaters closed.
The exhibitors and distributors attribute loss of Wilder’s theaters to Wilder’s mismanagement and its switch to x-rated films. Although this defense may justify a verdict against Wilder, it is insufficient to remove the case from the jury.
III
A fair measure of an exhibitor’s damages is the loss of its receipts attributable to an unlawful distribution system. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 262-63, 66 S.Ct. 574, 578-79, 90 L.Ed. 652 (1946). Three theories have been recognized for calculating damages. Under the demand theory, the exhibitor may calculate its damages by showing the profit it would have made on pictures it sought, but which were denied by the split, less the profit it made on the pictures it actually ran. Secondly, the exhibitor may show that it would have been futile to seek pictures allocated by the split. Its damages can be measured by comparing the exhibitor’s receipts with the receipts of a comparable theater operated by a participant in the split. Finally, the exhibitor can establish its damage by showing the diminution in value of its business property. These theories are not mutually exclusive. The jury may not speculate, but, acting upon probabilities and inferences it may base its verdict on a just and reasonable estimate derived from relevant data. See Bigelow v. RKO Pictures, 327 U.S. 251, 257-66, 66 S.Ct. 574, 576-580, 90 L.Ed. 652 (1946); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 893-96 (8th Cir. 1978).
Wilder proceeded on all three theories, but it relied primarily on futility. The district court erred in its analysis of this theory of damages. It held: “[T]o rely on the futility theory, plaintiff must show it made superior bids or offered superior terms for films which were rejected and licensed pursuant to inferior bids.” This ruling is more appropriate for the demand theory than the futility theory. An exhibitor can show futility in the manner outlined by the court, but we have found no authority that establishes this as the sole proof of futility. Here, Wilder introduced direct evidence that independents were denied access to first-run films by the split. It was this predicament that impelled Andrews to beg to be allowed to participate in the split even if only on restricted terms. Schoenfeld’s testimony that he could not get first-run films the way the system was operated is additional proof of futility. From all of this evidence, a jury could infer that Wilder’s bidding also would have been futile. Furthermore, when Wilder confronted several distributors demanding to know whether successful bidders were guaranteeing the large sums specified in solicitations to bid, he received no answers. The distributor’s silence does not, contrary to Wilder’s contention, prove the existence of sham bidding, but it is relevant in determining whether Wilder’s concern about the futility of bidding was 'justified, or whether it failed to bid, as the exhibitors and distributors contend, because of mismanagement.
Having presented sufficient evidence of futility, Wilder should be allowed to compute his damages under this theory, and on remand the issue should be submitted to the jury. It is hardly necessary for us to observe that Wilder can present evidence under other theories, but there can be only one recovery.
IV
Because the case must be retried, we will address a number of other errors assigned by Wilder.
For reasons adequately explained by the district court, we find no error in its refusal to toll the statute of limitations. The court, however, should have allowed discovery about the split in 1971 and 1972 even though these years preceded the limitation period. This evidence is relevant to the issues of conspiracy and futility. For the same reason, the court should admit evidence about Jaws which was proffered to establish the split’s involvement in sham bidding.
The court excluded a stipulated list of films that were split because Wilder had not shown distributor participation in the split. Since we have concluded that evidence of this conduct was presented, the stipulation should be admitted. It is clearly relevant to the pervasiveness of the split and to provide underlying data for the application of the futility theory.
The court did not err in limiting, under the demand theory, Wilder’s proof to the 23 films he listed in an interrogatory. This limitation of proof is not, however, appropriate with respect to the futility theory, which, as we have pointed out, does not require proof of demand or. the denial of any specific film.
The court did not abuse its discretion by excluding Variety Magazine ratings of films Wilder played after the split unless it produced the ratings of films it played before the split.
The court should not have excluded the testimony of Wilder’s experts. The first, president of the National Independent Theaters’ Exhibitors’ Association, had operated his own theaters and studied splits in at least a dozen marketing areas. He was prepared to testify that ABC, AMC, and General were among the top five circuit exhibitors in the country and to offer the opinion that a split could not operate successfully without the participation of distributors. The district court excluded his testimony, primarily because the witness was not familiar with “trade highway traffic patterns, shopping habits, or anything else” in the Norfolk-Virginia Beach market.
There was no evidence that splits operated by large circuit exhibitors and national distributors would differ essentially because of geographic location. The witness qualified under Rule 702 of the Federal Rules of Evidence because his testimony would help the jury understand the intricacies of film distribution and the nature and effects of splits, subjects which are not common knowledge. As the advisory committee noted, “an intelligent evaluation of facts is often difficult or impossible without application of . . . specialized knowledge. The most common source of this knowledge is the expert witness ....” Rule 702, Advisory Committee’s Note. The witness’s testimony was relevant, Rule 402, and it satisfied the requirement of Rule 703.
The second expert whose testimony was excluded was an economist who was called on the issue of damages. This witness admitted he was not an expert in local real estate values. No local realtor was called to furnish underlying facts for the expert’s calculations, and no alternative showing, as required by Rule 703, was made that the underlying data mentioned by the expert about local values was of a type reasonably relied on by other experts in the field. Accordingly, the district court did not err in excluding his testimony about diminution in the value of Wilder’s property. On the other hand, the expert’s testimony about the losses sustained by Wilder was admissible, especially in view of the evidence of futility. Contrary to the district court’s observations, proof of an exhibitor’s damages in an antitrust case is not so simple that a jury should be deprived of expert testimony. Calculation of damages is inherently difficult because it requires an estimation of gross receipts that were, in fact, never received. The asserted fallibility of the expert’s assumptions affected the weight of his testimony, not its admissibility. See Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 22-25 (5th Cir. 1974).
We find no abuse of discretion in the court’s exclusion of testimony that was simply cumulative to proof supplied by stipulation.
The court did not err in refusing to allow Wilder to contradict its answer to an interrogatory about house expenses on which the defendants had relied. Since the case must be retried, Wilder should be afforded an opportunity to clarify the difference between actual house expenses and “sliding scale” house expenses as used in the industry for bidding purposes and to supplement his answer by showing both figures. The element of unfair surprise to the defendants has been removed by the passage of time and events, and confusion over the house expenses should be dispelled.
The judgments in favor of Allied, American, Avco, and Buena Vista are affirmed, and they shall recover their costs against Wilder.
The judgments in favor of ABC, AMC, General, Columbia, Fox, Paramount, United Artists, Universal, and Warner are vacated, and the case is remanded for trial. Wilder, having substantially prevailed, shall recover his costs against these appellees.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
. Day and date basis is an industry term indicating that a film is licensed to play in more than one theater in the market at the same time.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_geniss | D | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Lloyd DUNKELBERGER, Appellant, v. DEPARTMENT OF JUSTICE, et al.
No. 88-5356.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 12, 1990.
Decided June 29, 1990.
Deborah R. Linfield, New York City, with whom Wallace A. Christensen, Washington, D.C., was on the brief, for appellant.
Nathan Dodell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and R. Craig Lawrence and John D. Bates, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
Lloyd Dunkelberger, a reporter for the New York Times Regional Newspaper Group, appeals the district court’s grant of summary judgment denying his request for information from the Federal Bureau of Investigation pursuant to the Freedom of Information Act. Dunkelberger had sought information relating to the alleged suspension of an FBI agent for misconduct that supposedly occurred in connection with an investigation of a prominent state official and his nephew. Because an in camera inspection of certain submitted personnel materials revealed no information warranting disclosure, we affirm the district court’s decision.
I. BACKGROUND
The facts of this case spring from a Federal Bureau of Investigation probe of former Florida State Senate President Mallory Horne and his nephew, Melvin Horne, focusing on their alleged laundering of money on behalf of drug smugglers. The FBI investigation resulted in a highly publicized trial in which Mallory Horne was acquitted and his nephew convicted.
Both before and after the trial, Senator Horne maintained that the FBI had acted improperly in its investigation, specifically in its use of undercover agents, including Special Agent Matthew Pellegrino. The FBI denied an informal request from Dun-kelberger for information concerning any administrative disciplinary action that might have been taken against Pellegrino relating to his participation in the Horne investigation. Thereupon, in October 1987, Dunkelberger made a formal request to the FBI under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), for access to FBI records relating to any such disciplinary action. In the request, Dunkelberger specifically asked for copies of the letter of reprimand or suspension that he alleged Pellegrino had received.
FOIA provides that an agency, upon request, must make its records “promptly available to any person” requesting them, provided the request “reasonably describes” the records sought. 5 U.S.C. § 552(a)(3). FOIA exempts nine specific categories of information from its disclosure requirements. Two such exemptions are relevant here. One protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (“Exemption 6”). The other exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”).
In denying Dunkelberger’s request, the FBI stated that it could neither confirm nor deny the existence of the records sought by Dunkelberger, and stated that if any such records did exist, their disclosure could constitute an unwarranted invasion of personal privacy and thus would be protected under Exemptions 6 and 7(C). Dunkelber-ger took an administrative appeal of this decision to the Assistant Attorney General in charge of the Office of Legal Policy, who affirmed the initial decision denying disclosure under both exemptions.
Dunkelberger then brought suit against the Department of Justice to compel disclosure pursuant to 5 U.S.C. § 552(a)(4)(B). The district court granted summary judgment in favor of the Department. Dunkelberger v. Department of Justice, Civ. No. 88-1432, mem. op., 1988 WL 104959 (D.D.C. Sept. 30, 1988) (“Memorandum Opinion”). The court conducted an in camera investigation of certain personnel materials submitted by the FBI and found that they were “compiled for law enforcement purposes” and thus satisfied the threshold requirement for application of Exemption 7. Id. at 2. This aspect of the ruling is not contested by the parties. The court then determined, on the basis of its in camera inspection, that Pellegrino’s privacy interest “significantly outweigh[ed]” any public interest in disclosure, and observed that the public interest in the proper review of the FBI’s activities “can be adequately addressed by the agency’s congressional oversight committees.” Memorandum Opinion at 3. Having found the information at issue “clearly within the purview” of Exemption 7(C), id., the court entered summary judgment in favor of the Department without reaching its alternative claim that the material was protected from disclosure by Exemption 6.
On appeal, Dunkelberger asserts that the district court erred (a) in refusing to order the release of the requested documents and (b) in relying on congressional oversight committees to protect the public interest in the adequate policing of agency activities. As the court’s reference to the role of congressional oversight committees was not critical to its decision, we will address only the first claim of error.
II. DISCUSSION
Dunkelberger does not suggest that the FBI withheld any document from the district court that was relevant to his request. Therefore, the issue before us is whether the court was correct in ruling that the documents examined in camera were not subject to disclosure under Exemption 7(C). We do not address the applicability of Exemption 6 because the district court did not rule on that issue.
Exemption 7(C) excludes from mandatory disclosure
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy....
5 U.S.C. § 552(b)(7)(C). As the statutory language makes clear, whether disclosure of requested law enforcement records is required turns on whether any such disclosure could reasonably be expected to result in an “unwarranted” invasion of privacy. The Supreme Court’s recent decision in United States Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), confirms that the specific reference to “unwarranted” in Exemption 7(C) “indieate[s] that a court must balance the public interest in disclosure against the interest Congress intended the Exemption to protect.” Id. 109 S.Ct. at 1483.
Under the balancing test adopted by this circuit in Stern v. FBI, 737 F.2d 84, 91-92 (D.C.Cir.1984), a court must first identify the privacy interests at stake. Stern recognizes that a government employee has at least a minimal privacy interest in his own employment record and evaluation history, which includes a
general interest in the nondisclosure of diverse bits and pieces of information, both positive and negative, that the government, acting as an employer, has obtained and kept in the employee’s personnel file.
737 F.2d at 91. Exemption 7(C) takes particular note of the “strong interest” of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity.” Id. at 91-92.
Second, the court must identify the public interest in disclosure. In Stern we dealt with a request for the identity of several FBI employees allegedly investigated in connection with the possible cover-up of illegal FBI surveillance activities. We noted that
the public interest in the disclosure of the identities of the censured employees is only in knowing who the public servants are that were involved in the governmental wrongdoing, in order to hold the governors accountable to the governed.
737 F.2d at 92 (emphasis in original). We went on to distinguish this interest in knowing the identity of the disciplined employees “from other public interests that may arise in requests for disclosure of government investigatory records,” such as knowing “that a government investigation itself is comprehensive,” that a released report is accurate, or that “any disciplinary measures imposed are adequate.” Id. We discarded those other public interests as elements to be balanced against the employees’ privacy interests “because they would not be satiated in any way by the release of the names of the censured employees.” Id.
Thus, in conformity with Reporters Committee, we identified the public interest by taking into account “the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’ ” 109 S.Ct. at 1481 (citation omitted). That interest, of course, must be defined with sufficient specificity to enable a court to determine the nature of the public interest that it is required to balance against the privacy interests Exemption 7(C) was intended to protect.
In applying these principles to the case before us, we begin by identifying the privacy interests that are here at stake. As we noted in our discussion of the interests protected by Exemption 7(C), while Pelle-grino has a particular interest in not being associated unwarrantedly with the misconduct alleged by Dunkelberger, he also has a more general interest in protecting the privacy of his employment records against public disclosure, whether the information contained in them is favorable or unfavorable. Thus he has at least a minimal interest in not having it known whether those records contain or do not contain a letter of reprimand.
In identifying the public interest that is to be taken into the balance, we look to the nature of the requested document and to the FOIA purpose to be served by its disclosure. In his “Statement of Material Facts,” Dunkelberger describes the latter as the public’s right to be informed “about intentional over-stepping by an FBI agent in his dealings with a political figure and the drug scene.” The document he requests is an alleged letter of reprimand or suspension “relating to the departmental investigation of, and disciplinary punishment meted out to, Special Agent Matthew Pellegrino for his volitional, unauthorized activities during the course of an FBI undercover ‘sting’ operation.” Brief for Appellant at 1.
We conclude that the interest to be weighed here is the public’s understandable concern over information about an FBI agent’s alleged participation in a scheme to entrap a public official and in the manner in which the agent was disciplined. This was the specific focus of Dunkelberger’s FOIA request; and, in fact, his counsel acknowledged at oral argument that if the documents at issue did not relate to Pellegrino’s alleged overreaching in the Horne investigation, they would not be subject to disclosure, even if they were to reveal other kinds of misconduct.
Having examined those documents in camera, we agree with the district judge’s conclusion that there is nothing in them that would “support plaintiff’s argument for concluding that disclosure would be in the public interest.” See Memorandum Opinion at 2-3. As there is nothing to be placed in the balance against Pellegrino’s general interest in preserving the confidentiality of his personnel files, we conclude that no invasion of Pellegrino’s privacy is warranted, however slight. We therefore hold that Exemption 7(C) was properly invoked and the FBI’s refusal to confirm or deny the existence of letters of reprimand or suspension fully justified.
Nothing we have said should be taken to imply that once an in camera inspection finds information relevant to the public interest described, disclosure is automatic. As Stern and Reporters Committee make clear, Exemption 7(C) will always call for a balancing of the competing interests, although we may do so on a categorical basis if a “case fits into a genus in which the balance characteristically tips in one direction.” Reporters Committee, 109 S.Ct. at 1483. Nor do we foreclose properly framed requests for information relating to the standards of conduct required of FBI agents and the disciplinary action taken when they are breached. See, e.g., Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).
III. ConClusion
Because a confirmation or denial of the existence of the letter of reprimand sought by Dunkelberger would have constituted an unwarranted invasion of Special Agent Pellegrino’s privacy, we find that Exemption 7(C) was properly invoked. The judgment of the district court is therefore
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_civproc2 | 81 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited.
Jesse Willard PERKINS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden Louisiana State Penitentiary, Respondent-Appellant.
No. 27593.
United States Court of Appeals Fifth Circuit.
Nov. 12, 1969.
Jack E. Yelverton, Asst. Atty. Gen., Jack P. F. Gremillion, Atty. Gen. of Louisiana, Bernard N. Marcantel, Dist. Atty., Baton Rouge, La., Alfred R. Ryder, Asst. Dist. Atty., for respondent-appellant.
Richard D. Chappuis, Jr., Lafayette, La., for petitioner-appellee.
Before GOLDBERG, DYER and CARSWELL, Circuit Judges.
PER CURIAM:
The State of Louisiana appeals from an order entered by the District Court after an evidentiary hearing granting Perkins a writ of habeas corpus. We affirm.
Perkins had been convicted of burglary in the state court. He was subsequently charged under the Louisiana habitual offender statute (La.R.S. 15:529.-1), found guilty, and sentenced accordingly. After exhausting state remedies he sought relief by writ of habeas corpus in the District Court, asserting that a pry-bar used in evidence against him in his burglary conviction was the product of an illegal search and seizure of his automobile.
The morning following a burglary of the Elkhorn Lounge, two uniformed deputies, one of whom was Perkins’ cousin, came to the home where Perkins was staying to question him in connection with the burglary. The officers were not armed- with either an arrest or search warrant and they testified at the hearing in the District Court that while Perkins was a suspect at the time, there was not yet probable cause which would have sustained an arrest or search warrant. Following a half-hour interrogation of petitioner by the two deputies, Perkins was asked permission to search his car. According to the testimony of the officers, petitioner gavé his consent to the search. However, it is uncontroverted that the officers did not inform Perkins that his consent was necessary for a search of the car or that they would not make a search if he declined permission. Perkins testified that he did not think there was much he could do about the search. Under these circumstances the District Court found that Perkins’ acquiescence in the search of his ear did not amount to a voluntary and intelligent waiver of the right to be free from unreasonable searches and seizures guaranteed by the fourth amendment to the Constitution.
Consent may constitute a waiver of fourth amendment rights, Zap v. United States, 1946, 328 U.S. 624, 66 S. Ct. 1277, 90 L.Ed. 1477), but, to be valid, a waiver must be an intelligent relinquishment of a known right or privilege, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. A waiver cannot be valid unless the person knows that his permission may be freely and effectively withheld. See Pekar v. United States, 5 Cir.1963, 315 F.2d 319.
The question whether there has been a consent to a search and seizure is one of fact. Landsdown v. United States, 5 Cir.1965, 348 F.2d 405. The “clearly erroneous” rule is applicable to findings of fact in habeas corpus proceedings, Fed.R.Civ.P., rules 52(a) and 81(a) (2); Tyler v. Beto, 5 Cir.1968, 391 F.2d 993, cert. denied 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574; and we cannot say that the finding of the District Court that there was not an intelligent and voluntary consent to the search of the automobile is clearly erroneous. A simple admonition by the officers that the search could not and would not be conducted without Perkins’ consent would have sufficed.
The judgment is
Affirmed.
. At the evidentiary hearing in the District Court there was a conflict in the testimony on this point. The officers testified that permission was requested and given; petitioner testified that permission was not asked and was never given. In the view of the case taken by the District Court and by us, it does not matter if permission was in fact sought and given.
Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer: |
sc_jurisdiction | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT et al.
No. 02-42.
Argued February 24, 2008
Decided April 23, 2003
O’Connor, J., delivered the opinion for a unanimous Court.
Felix E. Leatherwood, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor, David S. Chaney, Senior Assistant Attorney General, and William Dean Freeman, Lead Supervising Deputy Attorney General.
H. Bartow Farr III argued the cause for respondents. With him on the brief were Peter C. Bernhard and Donald J. Kula.
Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Richard E. Dornan, Attorney General of Florida, Jonathan A Glogau, Barbara J. Ritchie, Acting Attorney General of Alaska, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, James E. Ryan of Illinois, Steve Carter of Indiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, Anabelle Rodriguez of Puerto Rico, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, and Darrell V. McGraw, Jr., of West Virginia; for the Multistate Tax Commission by Frank D. Katz; and for the National Governors Association et al. by Richard Ruda and James I. Crowley.
Sharon L. Browne filed a brief for the Pacific Legal Foundation as ami-cus curiae urging affirmance.
Justice O’Connor
delivered the opinion of the Court.
We granted certiorari to resolve whether the Nevada Supreme Court’s refusal to extend full faith and credit to California’s statute immunizing its tax collection agency from suit violates Article IV, §1, of the Constitution. We conclude it does not, and we therefore affirm the judgment of the Nevada Supreme Court.
I
Respondent Gilbert P. Hyatt (hereinafter respondent) filed a “part-year” resident income tax return in California for 1991. App. to Pet. for Cert. 54. In the return, respondent represented that as of October 1, 1991, he had ceased to be a California resident and had become a resident of Nevada. In 1993, petitioner California Franchise Tax Board (CFTB) commenced an audit to determine whether respondent had underpaid state income taxes. Ibid. The audit focused on respondent’s claim that he had changed residency shortly before receiving substantial licensing fees for certain patented inventions related to computer technology.
At the conclusion of its audit, CFTB determined that respondent was a California resident until April 3, 1992, and accordingly issued notices of proposed assessments for income taxes for 1991 and 1992 and imposed substantial civil fraud penalties. Id., at 56-57, 58-59. Respondent protested the proposed assessments and penalties in California through CFTB’s administrative process. See Cal. Rev. & Tax. Code Ann. §§ 19041, 19044-19046 (West 1994).
On January 6, 1998, with the administrative protest ongoing in California, respondent filed a lawsuit against CFTB in Nevada in Clark County District Court. Respondent alleges that CFTB directed “numerous and continuous contacts ... at Nevada” and committed several torts during the course of the audit, including invasion of privacy, outrageous conduct, abuse of process, fraud, and negligent misrepresentation. App. to Pet. for Cert. 51-52, 54. Respondent seeks punitive and compensatory damages. Id., at 51-52. He also sought a declaratory judgment “eonfirm[ing] [his] status as a Nevada resident effective as of September 26, 1991,” id., at 51, but the District Court dismissed the claim for lack of subject matter jurisdiction on April 16,1999, App. 93-95.
During the discovery phase of the Nevada lawsuit, CFTB filed a petition in the Nevada Supreme Court for a writ of mandamus, or in the alternative, for a writ of prohibition, challenging certain of the District Court’s discovery orders. While that petition was pending, CFTB filed a motion in the District Court for summary judgment or, in the alternative, for dismissal for lack of jurisdiction. CFTB argued that the District Court lacked subject matter jurisdiction because principles of sovereign immunity, full faith and credit, choice of law, comity, and administrative exhaustion all required that the District Court apply California law, under which:
“Neither a public entity nor a public employee is liable for an injury caused by:
“(a) Instituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax [or]
“(b) An act or omission in the interpretation or application of any law relating to a tax.” Cal. Govt. Code Ann. §860.2 (West 1995).
The District Court denied CFTB’s motion for summary judgment or dismissal, prompting CFTB to file a second petition in the Nevada Supreme Court. This petition sought a writ of mandamus ordering the dismissal of the case, or in the alternative, a writ of prohibition and mandamus limiting the scope of the suit to claims arising out of conduct that occurred in Nevada.
On June 13, 2001, the Nevada Supreme Court granted CFTB’s second petition, dismissed the first petition as moot, and ordered the District Court to enter summary judgment in favor of CFTB. App. to Pet. for Cert. 38-43. On April 4, 2002, however, the court granted respondent’s petition for rehearing, vacated its prior ruling, granted CFTB’s second petition in part, and denied it in part. Id., at 5-18. The court held that the District Court “should have declined to exercise its jurisdiction over the underlying negligence claim under comity principles” but that the intentional tort claims could proceed to trial. Id., at 7.
The Nevada Supreme Court noted that both Nevada and California have generally waived their sovereign immunity from suit in state court and “have extended the waivers to their state agencies or public employees except when state statutes expressly provide immunity.” Id., at 9-10 (citing Nev. Rev. Stat. §41.031 (1996); Cal. Const., Art. 3, §5; and Cal. Govt. Code Ann. §820 (West 1995)). Whereas Nevada has not conferred immunity on its state agencies for intentional torts committed within the course and scope of employment, the court acknowledged that “California has expressly provided [CFTB] with complete immunity.” App. to Pet. for Cert. 10 (citing Cal. Govt. Code Ann. §860.2 (West 1995) and Mitchell v. Franchise Tax Board, 183 Cal. App. 3d 1133, 228 Cal. Rptr. 750 (1986)). To determine which State’s law should apply, the court applied principles of comity.
Though the Nevada Supreme Court recognized the doctrine of comity as “an accommodation policy, under which the courts of one state voluntarily give effect to the laws and judicial decisions of another state out of deference and respect, to promote harmonious interstate relations,” the court also recognized its duty to determine whether the application of California law “would contravene Nevada’s policies or interests,” giving “due regard to the duties, obligations, rights and convenience of Nevada’s citizens.” App. to Pet. for Cert. 11. “An investigation is generally considered to be a discretionary function,” the court observed, “and Nevada provides its [own] agencies with immunity for the performance of a discretionary function even if the discretion is abused.” Id., at 12. “[AJffording [CFTB] statutory immunity for negligent acts,” the court therefore concluded, “does not contravene any Nevada interest in this case.” Ibid. The court accordingly held that “the district court should have declined to exercise its jurisdiction” over respondent’s negligence claim under principles of comity. Id., at 7. With respect to the intentional torts, however, the court held that “affording [CFTB] statutory immunity . . . does contravene Nevada’s policies and interests in this case.” Id., at 12. Because Nevada “does not allow its agencies to claim immunity for discretionary acts taken in bad faith, or for intentional torts committed in the course and scope of employment,” the court held that “Nevada’s interest in protecting its citizens from injurious intentional torts and bad faith acts committed by sister states’ government employees” should be accorded greater weight “than California’s policy favoring complete immunity for its taxation agency.” Id., at 12-13.
We granted certiorari to resolve whether Article IV, § 1, of the Constitution requires Nevada to give full faith and credit to California’s statute providing its tax agency with immunity from suit, 537 U. S. 946 (2002), and we now affirm.
II
The Constitution’s Full Faith and Credit Clause provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1. As we have explained, “[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments.” Baker v. General Motors Corp., 522 U. S. 222, 232 (1998). Whereas the full faith and credit command “is exacting” with respect to “[a] final judgment . . . rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment,” id., at 233, it is less demanding with respect to choice of laws. We have held that the Full Faith and Credit Clause does not compel “ ‘a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.’” Sun Oil Co. v. Wortman, 486 U. S. 717, 722 (1988) (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 501 (1939)).
The State of Nevada is undoubtedly “competent to legislate” with respect to the subject matter of the alleged intentional torts here, which, it is claimed, have injured one of its citizens within its borders. “‘[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’ ” Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U. S. 802, 312-313 (1981) (plurality opinion)); see 472 U. S., at 822-823. Such contacts are manifest in this case: the plaintiff claims to have suffered injury in Nevada while a resident there; and it is undisputed that at least some of the conduct alleged to be tortious occurred in Nevada, Brief for Petitioner 33-34, n. 16. See, e. g., Carroll v. Lanza, 349 U. S. 408, 413 (1955) (“The State where the tort occurs certainly has a concern in the problems following in the wake of the injury”); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 503 (“Few matters could be deemed more appropriately the concern of the state in which [an] injury occurs or more completely within its power”).
CFTB does not contend otherwise. Instead, CFTB urges this Court to adopt a “new rule” mandating that a state court extend full faith and credit to a sister State’s statutorily recaptured sovereign immunity from suit when a refusal to do so would “interfer[e] with a State’s capacity to fulfill its own sovereign responsibilities.” Brief for Petitioner 13 (internal quotation marks omitted).
We have, in the past, appraised and balanced state interests when invoking the Full Faith and Credit Clause to resolve conflicts between overlapping laws of coordinate States. See Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 (1932) (holding that the Constitution required a federal •court sitting in New Hampshire to apply a Vermont workers’ compensation statute in a tort suit brought by the administrator of a Vermont worker killed in New Hampshire). This balancing approach quickly proved unsatisfactory. Compare Alaska Packers Assn. v. Industrial Accident Comm’n of Cal., 294 U. S. 532, 550 (1935) (holding that a forum State, which was the place of hiring but not of a claimant’s domicile, could apply its own law to compensate for an accident in another State, because “[njo persuasive reason” was shown for requiring application of the law of the State where the accident occurred), with Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 504-505 (holding that the State where an accident occurred could apply its own workers’ compensation law and need not give hill faith and credit to that of the State of hiring and domicile of the employer and employee). As Justice Robert H. Jackson, recounting these cases, aptly observed, “it [is] difficult to point to any field in which the Court has more completely demonstrated or more candidly confessed the lack of guiding standards of a legal character than in trying to determine what choice of law is required by the Constitution.” Full Faith and Credit — The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 16 (1945).
In light of this experience, we abandoned the balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause. Allstate Ins. Co. v. Hague, 449 U. S., at 308, n. 10 (plurality opinion); id., at 322, n. 6 (Stevens, J., concurring in judgment); id., at 339, n. 6 (Powell, J., dissenting). We have recognized, instead, that “it is frequently the case under the Full Faith and Credit Clause that a court can lawfully apply either the law of one State or the contrary law of another.” Sun Oil Co. v. Wortman, supra, at 727. We thus have held that a State need not “substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Pacific Employers Ins. Co. v. Industrial Accident Comm’n, supra, at 501; see Baker v. General Motors Corp., supra, at 232; Sun Oil Co. v. Wortman, supra, at 722; Phillips Petroleum Co. v. Shutts, supra, at 818-819. Acknowledging this shift, CFTB contends that this case demonstrates the need for a new rule under the Full Faith and Credit Clause that will protect “core sovereignty” interests as expressed in state statutes delineating the contours of the State’s immunity from suit. Brief for Petitioner 13.
We disagree. We have confronted the question whether the Full Faith and Credit Clause requires a forum State to recognize a sister State’s legislatively recaptured immunity once before. In Nevada v. Hall, 440 U. S. 410 (1979), an employee of the University of Nevada was involved in an automobile accident with California residents, who filed suit in California and named Nevada as a defendant. The California courts refused to apply a Nevada statute that capped damages in tort suits against the State on the ground that “to surrender jurisdiction or to limit respondents’ recovery to the $25,000 maximum of the Nevada statute would be obnoxious to its statutorily based policies of jurisdiction over nonresident motorists and full recovery.” Id., at 424.
We affirmed, holding, first, that the Constitution does not confer sovereign immunity on States in the courts of sister States. Id., at 414-421. Petitioner does not ask us to reexamine that ruling, and we therefore decline the invitation of petitioner’s amici States, see Brief for State of Florida et al. as Amici Curiae 2, to do so. See this Court’s Rule 14.1(a); Mazer v. Stein, 347 U. S. 201, 206, n. 5 (1954) (‘We do not reach for constitutional questions not raised by the parties”).
The question presented here instead implicates Hall’s second holding: that the Full Faith and Credit Clause did not require California to apply Nevada’s sovereign immunity statutes where such application would violate California’s own legitimate public policy. 440 U. S., at 424. The Court observed in a footnote:
“California’s exercise of jurisdiction in this case poses no substantial threat to our constitutional system of cooperative federalism. Suits involving traffic accidents occurring outside of Nevada could hardly interfere with Nevada’s capacity to fulfill its own sovereign responsibilities. We have no occasion, in this case, to consider whether different state policies, either of California or of Nevada, might require a different analysis or a different result.” Id., at 424, n. 24.
CFTB asserts that an analysis of this lawsuit’s effects should lead to a different result: that the Full Faith and Credit Clause requires Nevada to apply California’s immunity statute to avoid interference with California’s “sovereign responsibility” of enforcing its income tax laws. Brief for Petitioner 13.
Our past experience with appraising and balancing state interests under the Full Faith and Credit Clause counsels against adopting CFTB’s proposed new rule. Having recognized, in Hall, that a suit against a State in a sister State’s court “necessarily implicates the power and authority” of both sovereigns, 440 U. S., at 416, the question of which sovereign interest should be deemed more weighty is not one that can be easily answered. Yet petitioner’s rule would elevate California’s sovereignty interests above those of Nevada, were we to deem this lawsuit an interference with California’s “core sovereign responsibilities.” We rejected as “unsound in principle and unworkable in practice” a rule of state immunity from federal regulation under the Tenth Amendment that turned on whether a particular state government function was “integral” or “traditional.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546-547 (1985). CFTB has convinced us of neither the relative soundness nor the relative practicality of adopting a similar distinction here.
Even were we inclined to embark on a course of balancing States’ competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause, this case would not present the occasion to do so. There is no principled distinction between Nevada’s interests in tort claims arising out of its university employee’s automobile accident, at issue in Hall, and California’s interests in the tort claims here arising out of its'tax collection agency’s residency audit. To be sure, the power to promulgate and enforce income tax laws is an essential attribute of sovereignty. See Franchise Tax Bd. of Cal. v. Postal Service, 467 U. S. 512, 523 (1984) (“ ‘[Tjaxes are the life-blood of government’ ” (quoting Bull v. United States, 295 U. S. 247, 259-260 (1935))). But the university employee’s educational mission in Hall might also be so described. Cf. Brown v. Board of Education, 347 U. S. 483, 493 (1954) (“[Ejducation is perhaps the most important function of state and local governments”).
If we were to compare the degree to which the allegedly tortious acts here and in Hall are related to a core sovereign function, we would be left to ponder the relationship between an automobile accident and educating, on one hand, and the intrusions alleged here and collecting taxes, on the other. We discern no constitutionally significant distinction between these relationships. To the extent CFTB complains of the burdens and expense of out-of-state litigation, and the diversion of state resources away from the performance of important state functions, those burdens do not distinguish this case from any other out-of-state lawsuit against California or one of its agencies.
States’ sovereignty interests are not foreign to the full faith and credit command. But we are not presented here with a case in which a State has exhibited a “policy of hostility to the public Acts” of a sister State. Carroll v. Lanza, 349 U. S., at 413. The Nevada Supreme Court sensitively applied principles of comity with a healthy regard for California’s sovereign status, relying on the contours of Nevada’s own sovereign immunity from suit as a benchmark for its analysis. See App. to Pet. for Cert. 10-13.
In short, we heed the lessons learned as a result of Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 (1932), and its progeny. Without a rudder to steer us, we decline to embark on the constitutional course of balancing coordinate States’ competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause.
The judgment of the Nevada Supreme Court is affirmed.
It is so ordered.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer: |
songer_origin | C | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Charles Leroy MELQUIST, Petitioner-Appellant, v. Frank J. PATE, Warden, Illinois State Penitentiary, Respondent-Appellee.
No. 16284.
United States Court of Appeals Seventh Circuit.
July 24, 1968.
John Powers Crowley, Joseph E. McHugh, Chicago, Ill., for appellant.
William G. Clark, Atty. Gen., of Illinois, Robert F. Nix, Asst. Atty. Gen., Chicago, Ill., William V. Hopf, State’s Atty., of DuPage County, Ill., Wheaton, Ill., for respondent-appellee; John J. O’Toole, Asst. Atty. Gen., Edward W. Kowal, Asst. State’s Atty., of DuPage County, of counsel.
Before SCHNACKENBERG, SWY-GERT and FAIRCHILD, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Charles Leroy Melquist, petitioner (also described as “defendant”), has appealed from an order of the district court entered September 16, 1965 which denied his petition for writ of habeas corpus filed September 10, 1965, as amended.
In this court, counsel for both parties hereto agree with the following statement of facts:
As a result of a telephone call, defendant went to the Addison Police Department in Addison, Illinois, about 11:30 P.M. on Sunday, November 16, 1958. The following morning [November 17], between the hours of 12:15 A.M. and 1:15 A.M., the defendant was questioned by William Deveaney, a sergeant in the Addison Police Department, in regard to the murder of Bonnie Lee Scott. The questioning was temporarily interrupted about 1:15 A.M. only to resume about 2 A.M. At approximately 3:15 A.M. defendant was released by the police with directions to return to the station at 10 A.M.
Defendant returned to the Addison Police Station at approximately 10 A.M. as directed, and throughout the day [November 17] was subject to questioning, first in the Police Station, then in the offices of John Reed and Associates in Chicago, Illinois, and finally in the office of Frank Ferlic, State’s Attorney [sic] of Cook County, Illinois. Statements were made by defendant in Reed’s office and in Ferlic’s office. At. approximately 11 P.M. [November 17] defendant was taken from the State’s Attorney’s office of Cook County to the Bedford Park Police Station in Bedford Park, Illinois, by Chief Smith of the Cook County Sheriff’s Police and John Roche, Supervising Captain of the Cook County Sheriff’s Department.
The record shows that at some time after 10 A.M. on November 18, 1958 Judge Abraham L. Marovitz of the Criminal Court of Cook County, Illinois, ordered the issue of a writ of habeas corpus and that the petition for the writ had been presented to the clerk of the Criminal Court at 9:36 A.M. on said date. The record further shows that Judge Marovitz on the same date, November 18, ordered the writ quashed and the petition dismissed.
After 10 A.M. on November 18, 1958, Chief of Police Holler of Villa Park, DuPage County, and deputy sheriffs Mertes and Lang of DuPage County went to the Cook County sheriff’s office in Bedford Park. At that time defendant was in the custody of the Cook County sheriff’s police.
Captain Hederman of the Cook County sheriff’s police called Chief deputy sheriff Smith of Cook County about 9 A.M. on November 18 and told him that attorney McDonnell had told him he had a writ to produce defendant. Smith called the office of the deputy sheriff of Cook County three times (the last at 10 A.M.) and learned that no writ had been filed. After 10 A.M. defendant was transported in Smith’s car from Bedford Park to the Villa Park police station in DuPage County where they arrived at about 11 A.M.
Mertes, deputy sheriff of DuPage County, who had accompanied defendant from Bedford Park in another car, served defendant with an arrest warrant issued by DuPage County Justice of the Peace Daw that morning. Defendant was then sitting in Smith’s car and custody of him was turned over to Chief Holler.
Captain Roche was deputized as a deputy sheriff of DuPage County. He was not aware of a writ of habeas corpus before he turned over custody of defendant to Holler. Chief deputy sheriff Smith of Cook County was first informed that a writ had been issued after the defendant had been arrested and turned over to the DuPage County authorities. From the time defendant was turned over to Mertes at the place where the body was found, he was not in the custody of Cook County officers.
We agree wth the attorney general of Illinois when he says that the writ of habeas corpus issued by Judge Marovitz was what is commonly known as a booking writ, the purpose of which is either to compel the authorities holding a suspect to release him or to formally arrest him in order that there may be a preliminary hearing to determine whether a crime had been committed and that probable cause existed for the arrest of the person for whose benefit the writ was issued. However, in the case at bar petitioner Melquist was arrested on a warrant charging him with the crime of murder in DuPage County, where the warrant was issued. Even though it is probable that the DuPage County authorities were not actually aware of the issuance of the writ of habeas corpus in Cook County, that fact is irrelevant. Actually the DuPage County authorities in effect acceded to the demands of the Cook County writ of habeas corpus by booking petitioner as required by the writ, which was later quashed.
Petitioner was properly arrested by DuPage County officials and his detention by them was legal. The order of the district court from which petitioner has appealed is affirmed.
Order affirmed.
. The district court ordered that petitioner’s motion for a certificate of probable eause, which it allowed was to be considered as a notice of appeal.
. In the ear were also officer John Roche of the Cook County sheriff’s office, Chief Holler and deputy Lang of DuPage County. The defendant was handcuffed to Roche and Holler.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_pretrial | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Brian VUKADINOVICH, Appellant, v. Richard ZENTZ, Ronald Kurmis, John Ross, William Collins, and City of Valparaiso, Appellees.
No. 92-2957.
United States Court of Appeals, Seventh Circuit.
Submitted April 2, 1993.
Decided June 9, 1993.
Brian Vukadinovieh, Wheatfield, IN (submitted for appellant pro se).
William W. Kurnik (submitted), Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, for defendants-appellees.
Before POSNER and EASTERBROOK, Circuit Judges, and TIMBERS, Senior Circuit Judge.
The Honorable William H. Timbers, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation.
TIMBERS, Senior Circuit Judge.
Appellant Brian Vukadinovieh appeals from a judgment entered on a jury verdict in the Northern District of Indiana, James T. Moody, District Judge, finding in favor of appellees, City of Valparaiso, and several of its police officers, in a civil rights action commenced by Vukadinovieh pursuant to 42 U.S.C. § 1983 (1988).
On appeal, Vukadinovieh asserts that numerous errors committed by the court during his trial warrant a reversal of the judgment and a new trial.
For the reasons that follow, we reject Vu-kadinovich’s claims and we affirm the judgment in all respects.
I.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
This appeal arises from a lengthy history of disputes between Vukadinovieh and the Valparaiso, Indiana, (City) police department. The troubles began in September 1981 when Vukadinovieh was arrested for disorderly conduct by Valparaiso police officers William Collins and Cosmo Hernandez. At his trial, Vukadinovieh was found not guilty. He then commenced an action against the officers in the state court, alleging false arrest and excessive use of force. The case was settled before trial. In March 1983, Collins again arrested Vukadinovieh. After the charges were dismissed, Vukadino-vich commenced another action against Collins, alleging excessive use of force. This case also was settled before trial. On September 26, 1984, Vukadinovieh filed a complaint with Valparaiso Police Chief Richard Buchanan, claiming that he was being harassed by Valparaiso police officers. Buchanan assigned an officer to investigate the allegations. When the officer concluded that the claim was unfounded, the complaint was dismissed.
On October 15,1986, Officer Richard Zentz pulled Vukadinovieh over for driving without his headlights on after dusk. A standard computer check of Vukadinovieh’s date of birth and social security number revealed that his driver’s license had been suspended because of his numerous traffic violations. Zentz arrested Vukadinovieh for driving with a suspended license and took him into custody. Vukadinovieh recorded on tape the conversation that occurred during this arrest. The charge against Vukadinovieh eventually was dismissed.
On November 3, 1986, while on patrol, Zentz observed a truck speeding. Although he did not have a radar device, Zentz was able to estimate the truck’s speed based on his pursuit of it. Zentz pulled the truck over. He approached the truck to issue a citation and recognized Vukadinovieh as the driver. Vukadinovieh remarked that he was not going to stick around, restarted the truck, and pulled away. Zentz returned to his patrol car and summoned assistance. Officers Ronald Kurmis and John Ross answered the call. They followed Vukadinovieh to his residence where, despite his forceful resistance, they handcuffed him and put him in a patrol car. Vukadinovieh was taken to the police station where he was charged with speeding, fleeing, resisting arrest, and battery. The arrest report was reviewed and signed by Officer Collins.
When Vukadinovieh arrived at the police station on this occasion, he began complaining of pains and was taken to a hospital. Upon returning from the hospital, Vukadino-vich claimed that Officer Zentz had gone through his personal belongings and had stolen $500 from his wallet. An employee responsible for inventorying and safekeeping prisoners’ property testified, however, that there was no money in Vukadinovich’s wallet when he arrived at the police station. The charges arising from this arrest eventually were dismissed.
To review and investigate citizen complaints against its police officers, the City has an internal review board comprised of officers. The City also has a Board of Works to handle disciplinary actions brought' against its officers. Harassment complaints, however, are not reviewed immediately by any board. Instead, they are investigated by an officer who determines whether there is sufficient cause to investigate further.
On October 6, 1988, Vukadinovieh commenced the instant § 1983 action against officers Zentz, Kurmis, Ross, Collins, Hernandez, and Wheatfield, Indiana police officer Paul Westmoreland. Vukadinovieh also named the City as a defendant. Vukadino-vich alleged that the officers conspired to deprive him of his constitutional rights, in retaliation for his two actions against Officer Collins. Vukadinovieh further alleged that his civil rights were violated during his arrests on October 15 and November 3 and by Officer Zentz’s alleged theft of $500 from his wallet while he was in custody following the November 3 arrest. Vukadinovieh maintained that the City was aware of its officers’ campaign of harassment, yet did nothing to prevent it.
On December 8, 1989, the court entered summary judgment in favor of officers Hernandez and Westmoreland on the ground that there was insufficient evidence to establish that either violated or entered into a conspiracy to violate Vukadinovich’s constitutional rights. A jury trial began on March 11, 1991 at which Vukadinovieh proceeded pro se. At the close of Vukadinovich’s case, appellees moved for a directed verdict. The court denied this motion. Appellees renewed their motion for ‘ a directed verdict at the close of all the evidence. The court granted this motion in part, finding that (1) there was probable cause to arrest Vukadinovieh on November 3, 1986; (2) there was insufficient evidence to establish that Zentz took or had access to the $500 alleged to have been stolen; (3) there was no evidence establishing a custom or practice by the City of tolerating deprivations of Vukadinovich’s rights; and (4) the evidence was insufficient to link Officer Collins to the conspiracy. On March 18, 1991, the jury returned a verdict in favor of appellees on the remaining claims. All parties filed post-trial motions. In an order dated June 29, 1992, the court denied all of these motions.
On appeal, Vukadinovieh seeks reversal of the judgment entered on the jury’s verdict and a new trial on the ground that the court committed numerous errors during his trial.
II.
First, Vukadinovieh contends that the court improperly excluded from evidence at trial the audiotape recording of his October 15 arrest. Since a court has broad discretion in deciding whether to admit tape recordings, we will overturn its decision only in extraordinary circumstances. United States v. Jewel, 947 F.2d 224, 228 (7th Cir. 1991). Further, where the recording contains inaudible or unintelligible portions, the decision whether to admit it in evidence is committed to the sound discretion of the trial court. United States v. Zambrano, 841 F.2d 1320, 1337 (7th Cir.1988). Here, Vukadinovich concedes that the tape is partially inaudible. Moreover, he has not convinced us that there were extraordinary circumstances to support its admission. We hold that the court did not abuse its discretion in excluding the tape.
While Vukadinovieh correctly states that the parties included the tape recording in the pretrial order and that appellees failed to object to its inclusion as required by Local Rule 21(f)(6), the court’s decision to exclude the tapes at trial nevertheless was proper. Indeed, we are reluctant to “interfere with the trial court’s determination not to hold the appellee[s] to the pretrial order unless there was a clear abuse of discretion or manifest injustice”. Sadowski v. Bombardier, Ltd., 539 F.2d 615, 621 (7th Cir.1976); see also Fed.R.Civ.P. 16(e). While the instant ease is somewhat unique since it involves the exclusion of a document listed in a pretrial order rather than the usual situation involving the introduction of an unlisted document, we perceive no injustice resulting from our reluctance to interfere with the court’s decision to alter the pretrial order.
To determine whether the court abused its discretion in departing from its pretrial order, we examine the following factors: (1) prejudice to the opposing party; (2) ability of the opposing party to cure the effects of any prejudice; (3) disruption of the orderly and efficient trial of the case; and (4) bad faith in the party’s failure to adhere to the pretrial order. Smith v. Rowe, 761 F.2d 360, 365 (7th Cir.1985). Here, Vukadinovieh claims that he was prejudiced because appellees’ late objection prevented him from calling linguistic experts to analyze the tape. However, since the court determined that the tape was inaudible, its exclusion did not prejudice Vukadinovieh. United States v. Vega, 860 F.2d 779, 790 (7th Cir.1988) (tape inadmissible where “unintelligible portions are so substantial as to render the recording as a whole untrustworthy”) (citation omitted). Further, to admit both the tape and expert testimony would have disrupted the efficient trial of the ease. Finally, there is no evidence of bad faith on the part of defense counsel in not adhering to the pretrial order. Accordingly, since Vukadinovieh does not satisfy the factors set forth in Smith, supra, and since, even if the tape was improperly excluded, he cannot demonstrate that it was more than harmless error, Fed.R.Evid. 103, we hold that the court did not abuse its discretion in departing from its pretrial order.
Second, Vukadinovieh contends that the court erred in allowing appellees to use unsigned depositions at trial, in violation of Fed.R.Civ.P. 30(e). Vukadinovieh, however, fails to recognize that the use of unsigned depositions at trial constitutes harmless error unless he can show that there were particular inaccuracies in the depositions or that he was prejudiced by their use at trial. United States v. Campbell, 845 F.2d 1374, 1379 (6th Cir.), cert. denied, 488 U.S. 908 (1988). Here, Vukadinovieh has failed to show what inaccuracies, if any, appeared in the depositions. He also has failed to show how the use of the depositions prejudiced him. Although it may be said that the court improperly, admitted unsigned depositions, doing so constituted at worst harmless error.
Third, Vukadinovieh contends that the court erred in denying his post-trial Fed. R.Civ.P. 60(b) motion to vacate the judgment and impose sanctions on the City for withholding evidence in violation of a court order. In particular, Vukadinovieh asserts that the City did not comply with the court’s order to submit for in camera inspection the officers’ personnel files. Under Rule 60(b), a court is permitted to grant relief only in “exceptional circumstances”. United States v. One 1979 Rolls-Royce, 770 F.2d 713, 716 (7th Cir. 1985). Further, a decision not to grant a Rule 60(b) motion will be reversed only where the court abused its discretion. Simmons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir.1983). To prevail, Vukadinovieh bears the burden of showing that the City wrongly withheld evidence, id., and that the evidence probably would have produced a different result at trial. Bradley Bank v. Hartford Accident & Indem. Co., 737 F.2d 657, 662 (7th Cir.1984). Here, Vukadinovieh failed to adduce any evidence that the City deliberately or wrongfully withheld evidence. Moreover, Vukadinovieh has not shown that the evidence allegedly withheld would have produced a different result at his trial. Indeed, the information sought by Vukadino-vich pertained to the City’s liability which, since the jury found for the individual officers, is irrelevant. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (damages not available against municipality where jury has concluded that its officers inflicted no constitutional harm); Tom v. Voida, 963 F.2d 962, 962 (7th Cir.1992) (same). We hold that the court did not abuse its discretion in denying Vukadinovich’s Rule 60(b) motion.
Fourth, Vukadinovich contends that the court erred in fading to instruct the jury to disregard its previous rulings that dismissal of the charges against Vukadinovich arising from his October and November arrests were irrelevant. This claim clearly lacks merit. Vukadinovich never requested that the court instruct the jury to disregard its prior rulings. In view of Vukadinovich’s failure to object at trial, we need not consider this claim on appeal. Further, even if we were to consider this claim, the court corrected itself by. allowing a stipulation to be entered in evidence stating that the criminal proceedings arising from .both arrests had been dismissed. We hold that the court properly informed the jury that the court’s prior rulings were to be disregarded.
Fifth, Vukadinovich contends that the court erred in entering a directed verdict on the ground that Officer Zentz had probable cause to arrest him on November 3, 1986. We disagree. Since Zentz followed Vukadinovich for several seconds in a patrol car with a calibrated speedometer, no reasonable jury could conclude that he “guessed” at Vukadinovieh’s speed. Zentz also was aware that, when he arrested Vukadinovich two weeks earlier, he had been driving with a suspended license. Further, Vukadinovich’s flight from the scene and forceful resistance at his subsequent arrest gave Zentz probable cause to arrest him on November 3. We hold that the court properly concluded that no reasonable juror could find Vukadinovich’s November arrest unconstitutional. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 260 (1986).
Sixth, Vukadinovich contends that the court erred in directing a verdict on his due process claim against Officer Zentz for allegedly removing money from his wallet while he was in custody. This claim lacks merit. There is no evidence from which a jury reasonably could conclude that Zentz removed $500 from Vukadinovich’s wallet. The wallet was inventoried and kept in safekeeping by jail employees. These employees testified that there was no money in -Vukadinovich’s wallet when he was brought; to the jail and that no outside parties had access to his wallet. Indeed, the fact that Zentz may have had access to the wallet when he put a ticket in with Vukadinovieh’s personal belongings is merely a “scintilla” of evidence which is insufficient to defeat a motion for directed verdict. Anderson, supra, 477 U.S. at 261 (quoting Improvement Co. .v. Munson, 81 U.S. 442, 448 (1872)). Moreover, even if Zentz had stolen the money, it was the type of random and unauthorized act that does not violate due process since adequate post-judicial remedies were available to Vukadinovich. Hudson v. Palmer, 468 U.S. 517, 533-34 (1984). Specifically, Vukadinovich could have asserted a state law claim for conversion. Yoder Feed Serv. v. Allied Pullets, Inc., 171 Ind.App. 692, 359 N.E.2d 602 (1977). We hold that the court properly directed a verdict for Zentz on Vukadinovich’s due process claim.
Seventh, Vukadinovich contends that the court erred in directing a verdict for the City. He fails to recognize, however, that since the City’s § 1983 liability is derivative, it cannot be held liable where, as here, a jury returns a verdict in favor of its police officers. Tom, supra, 963 F.2d at 962. Further, in view of the mechanisms in place to investigate complaints, Vukadinovich has not shown that the City was delibérately indifferent to the constitutional rights of its citizens. City of Canton v. Hands, 489 U.S. 378, 389 (1989). Vukadinovich also has not demonstrated that the City perfunctorily dismissed meritorious citizen' complaints. Bryant v. Whalen, 759 F.Supp. 410, 412 (N.D.Ill.1991). We hold that the court properly directed a verdict for the City.
Eighth, Vukadinovich contends that the court erred in excluding pursuant to Fed. R.Evid. 403 complaints against the officers, newspaper articles, copies of actions against the City, and a copy of a departmental investigation report of Officer Zentz which occurred after the events here involved. A court’s decision to exclude evidence under Rule 403 is “generally accorded great deference because of [the court’s] first-hand exposure to the evidence and [its] familiarity with the course of the trial proceedings”. United States v. Briscoe, 896 F.2d 1476, 1498. (7th Cir.), cert. denied, 498 U.S. 863 (1990). Further, to be admissible, such evidence must pertain to events similar to the events in the instant case. Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir.1985). Here, the prior complaints arose from dissimilar events and were filed for a number of different reasons. We hold that the court did not abuse its discretion in excluding this evidence.
Ninth, Vukadinovich contends that the court erred in directing a verdict for' appel-lees on his conspiracy claims. This contention also is without merit. To establish a conspiracy, Vukadinovich must have demonstrated an agreement and a deprivation of his constitutional rights. Scherer v. Balkema, 840 F.2d 437, 441-42 (7th Cir.), cert. denied, 486 U.S. 1043 (1988). Here, the jury found that the officers did not violate Vukadi-novich’s constitutional rights. Without such a violation, there can be no conspiratorial liability. We hold that the court properly directed a verdict on the conspiracy claims.
Tenth, Vukadinovich contends that the court erred in directing a verdict in favor of Officer Collins. This contention also is without merit. Collins’s role was limited to signing and reviewing the arrest report compiled by Zentz regarding the November arrest. Merely signing the police report absent actual knowledge of what took place is insufficient to establish a connection between Collins and the alleged deprivation of Vuka-dinovich’s constitutional rights. Lee v. Town of Estes Park, 820 F.2d 1112, 1116 & n. 3 (10th Cir.1987). We hold that the court properly directed a verdict in favor of Collins.
Eleventh, Vukadinovich contends that the court erred in dismissing his § 1983 and state law malicious prosecution claims. This contention also is without merit. At the jury instructions conference, Vukadinovich informed the court that his malicious prosecution claim was being asserted “per se” and was not based on his actions against Officer Collins. Standing alone, malicious prosecution is not actionable under § 1983. Maho-ney v. Kesery, 976 F.2d 1054, 1060-61 (7th Cir.1992). Here, Vukadinovich’s claim that his action was for malicious prosecution per se indicated that it stood alone. It is not actionable under § 1983. Further, Vukadi-novich’s state law malicious prosecution claim also was dismissed properly since appellees are immune under Indiana law. Ind.Code § 34-4-16.5-3(5) (1983).
Finally, Vukadinovich contends that the court erred in failing to give a more elaborate response to a question from the jury seeking clarification about the dates of certain photographs taken of Vukadinovich’s injuries. We disagree. Since the jury was confused by certain facts and not by legal principles, the court did not abuse its discretion in simply referring to its prior instructions in answering the jury’s question. United States v. Aubin, 961 F.2d 980, 983-84. (1st Cir.), cert. denied, 113 S.Ct. 248 (1992). Further, even if the court erred, Vukadino-vich has failed to demonstrate that the court’s response so prejudiced him as to constitute anything more than harmless error.
III.
To summarize:
We hold that the court did not commit any reversible errors during Vukadinovich’s trial. We affirm the judgment in all respects.
Affirmed.
Question: Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_state | 56 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
NATIONAL LABOR RELATIONS BOARD v. LUXURAY, Inc.
No. 10.
Circuit Court of Appeals, Second Circuit
Nov. 3, 1941.
Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Bernard R. Bralove and Bertram Edises, all of Washington, D. C., for petitioner National Labor Relations Board.
Philip Jones, of New York City (John N. Platoff, of Union City, N. J., of counsel), for respondent Luxuray, Inc.
Before L. PIAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The respondent is a New York corporation engaged in the business of manufacturing wearing apparel. The National Labor Relations Board has filed a petition to’ enforce an order (1) requiring the corporation to desist from unfair labor practices, consisting of threats and anti-union statements calculated to persuade its employees not to join or assist International Ladies’ Garment Workers’ Union and to interfere with, restrain and coerce them in their right to self-organization and to bargain collectively through representatives of their own choosing; (2) requiring the corporation to offer Ethel Weller immediate reinstatement to her former position in the appliqué department or to a substantially equivalent position without prejudice to her seniority and to make her whole for any loss of pay since February 4, 1938, by reason of discrimination in regard to hire and tenure.
The Board found upon substantial evidence that in April 1937 the union began to organize the respondent’s employes. In a speech to them in December 1937 Rogosin, the president, gave reasons why it woftld not be to their advantage to join the union. In the course of his remarks he said about C. I. O. union leaders:
“ * * * They promised you increases in salaries, steady work, and vacations, and all they accomplished was that you have no work at all.
“ * * * I have been molested and annoyed by union conferences and adjustments, which have taken too much of my time, preventing me from planning to secure enough work to keep you employed as in the past. * * *
“It does not seem to me that Mr. Green, of the A. F. of L., or Mr. Lewis, of the C. I. O., are very seriously concerned over what they can do for you. It seems that their only interest is to obtain you as members and have the income of your dues for what it may do for themselves. You can readily see this, when they attack companies like ours, which have been paying better wages then the majority of competitive manufacturers, and you realize that we sell our goods in competition with manufacturers in New Jersey, Pennsylvania, North Carolina, South Carolina, and elsewhere. There were a number of manufacturers in our industry in Pennsylvania and in the South, paying considerably lower wages than we were, whom the union did not bother at all or attempt to bother, and they, in turn, having a lower cost of production and the mind of their management at ease, have gotten the business that rightfully should have been ours.
* ❖ * -\i * *
“My advice to you is that it is not to your interest to join the union and pay-dues. All you will accomplish will be that you will give to the union a portion of what we are able to give you. My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not. * * * ”
Shott, a Field Examiner of the National Labor Relations Board, gave testimony as to the attitude of Rogosin towards unions. He testified that when he took up with Rogosin the complaint of the Board about the discharge of Ethel Weller, Rogosin said: “She is working for the union, and I have no place in my organization for any one receiving wages as a union organizer * * * I want the Labor Board to understand that she is discharged * * * I am going to run my own business and I am not going to permit the Labor Board to run my business * *
It seems clear from the various utterances of Rogosin that there was proof that the respondent had a fixed hostility towards the activities of its employes in organizing a union in its plant and in selecting International Ladies’ Garment Workers’ Union as their representative. There plainly was substantial evidence of acts of interference, restraint and coercion on the part of the employer such as are proscribed by Section 8(1) of the Act, 29 U.S.C.A. § 158(1).
It is argued on behalf of the respondent that portions of Rogosin’s speech to the employes contained expressions sympathetic with labor unions. He did allude to the fact that Beaunit Mills, a corporation owning all the stock of respondent and of which he was president, had appointed T. W. O., a C. I. O. affiliate, bargaining agent for its employes at the Beaunit Mills Plant at Cohoes, New York, and had entered into a contract with T. W. O. regulating labor relations. But it is to be noticed that there is no proof that this contract had the sanction of the Cohoes employes or that they had selected it to represent them. It was open to the Board to regard the contract between Beaunit and T. W. O. as having no bearing on the situation here for at best it was an agreement covering workers who were not part of the group to which respondent’s employes belonged or with which the latter were appropriately combined as a bargaining unit. Rogosin’s speech as a whole and his subsequent talk with Shott amply supported the finding of the Board that the respondent had violated the rights guaranteed to its employes under Section 7 of the Act, 29 U.S.C.A. § 157, and had been guilty of acts of interference prohibited by Section 8(1).
It is further contended by the respondent that Rogosin acted lawfully in warning the employes against unions because of his right to freedom of speech guaranteed by the • Constitution. But freedom of speech does not extend to interested appeals by an employer to induce his men not to exercise the right of collective bargaining and not to become members of a labor union. National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U.S. 272, 274, 58 S.Ct. 577, 82 L.Ed. 838; National Labor Relations Board v. Federbush Co., 2 Cir., 121 F.2d 954, 957; National Labor Relations Board v. American Mfg. Co., 2 Cir., 106 F.2d 61, affirmed 309 U.S. 629, 60 S.Ct. 612, 84 L.Ed. 988. When Rogosin said to his employes: “My advice is to work in harmony with the company and leave it to our judgment as to when it is practical to increase your scale of wages and when it is not, * * * ” his action went beyond mere friendly advice. In view of his power to discharge the employes they might fairly suppose not only that it was not to their interest to become members of the union but that they might suffer from such an association. National Labor Relations Board v. A. S. Abell Co., 4 Cir., 97 F.2d 951, 956.
The mandatory provisions of the order directing the reinstatement of Ethel Weller with back pay are vigorously assailed by the respondent, but we feel no doubt that they find substantial justification in the record.
Mrs. Weller had acted as a fore-lady in a department of the Fort Plain Plant and was an employee of acknowledged competence. It is said that when the work of the company slowed down and many in her department were laid off she was excused for this reason. But she was never offered reinstatement, while other employes of inferior status were restored, and Rogosin told Shott, when the latter complained of this, that she was “discharged” and that he had no place in his “organization for anyone receiving wages as a union organizer.” She had been a member of the union for about nine months before she was laid off, had been conspicuously active in the union organization and had had weekly meetings held for that purpose at her house. The fact that other members of the union had been retained as employes, when Ethel Weller was laid off and that she had been kept in employment for many months after her membership in the union was known is said to show conclusively that there was no discrimination against her. But her leadership in union activities, the use of her house for the weeks immediately preceding her discharge for union activities, the persistence of the respondent in refusing reinstatement to her while juniors in service were being taken back justify the inference of discrimination drawn by the Board. Indeed such an inference is fully warranted by Rogosin’s statement to Shott which we have quoted, had there been little or nothing else on which to base the finding.
The belated contention that the Examiner showed bias and did not give a fair hearing is wholly unfounded. Iiis report contained some mistakes and his finding that an employee, Clara Gramps, was discharged because of union activities was reversed by the Board. Nevertheless, the fact that he acted with propriety and afforded the respondent a fair hearing is evident from the remarks of the latter’s counsel who said at the close of the hearing: “I thank the Examiner for your kindness and consideration and your efforts toward impartiality.”
For the foregoing reasons we hold that the petition of the Board for enforcement of its order should be granted with the conceded modification of Paragraph 2 (b) thereof, so far as it requires the payment over of moneys received for work performed on Federal, State, County, Municipal and other work relief projects. See Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.
Petition granted as modified.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_casetyp1_1-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Plaintiff-Appellee, v. James Dean CALLIS, Defendant-Appellant.
No. 17935.
United States Court of Appeals Sixth Circuit.
Feb. 29, 1968.
Dale Quillen, Nashville, Tenn., for appellant.
Gilbert S. Merritt, Jr., Nashville, Tenn., for appellee.
Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and McALLISTER, Senior Circuit Judge.
PER CURIAM.
Appellant was convicted of entering a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, with intent to commit larceny of money in the possession of the bank.
Appellant claims that there was error on the part of the District Court in calling upon his counsel, In the presence of the jury, to state whether he desired to have the jury excused for the purpose of his making objections or requests for any additional instruction. The claimed error is based on the ground that this action of the court prejudiced the jury. Appellant further contends that the trial court erred in refusing to charge the jury, as requested by appellant, that certain witnesses, by name, Thomas Boner and Luther Martin, were accomplices.
Rule 30 of the Federal Rules of Criminal Procedure provides:
“No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.”
Appellee points out that the foregoing rule does not provide that the trial judge must excuse the jury, before he finds out that counsel wants the jury excused, in order that he may make objections out of the presence of the jury. The rule provides that the jury must be excused on the request of any party, but not that it be excused before a party requests such action.
As to the refusal of the court to charge the jury, as requested by appellant, that Boner and Martin were accomplices, it is admitted that the District Court correctly charged the jury as to the treatment to be accorded testimony of accomplices ; but the court explained to counsel out of the presence of the jury that the evidence was unclear on the question of the status of the witnesses as accomplices. It further explained that the two witnesses had not been indicted, and remarked that “if someone has not entered a plea of guilty, and I say he’s an accomplice, well then I’ve convicted him myself, haven’t I?”
Appellant refers to the law of Tennessee, where, it is contended, the rule prevails that uncorroborated testimony of an accomplice is insufficient to support a conviction. This, however, is a federal case and the rule is different. In federal cases the uncorroborated testimony of an accomplice is sufficient to support a conviction. While the court did not charge that the witnesses in question were accomplices because it was not clear to it that they were, it nevertheless instructed the jury that an accomplice is one who unites with another person in the commission of a crime voluntarily and with common intent; that an accomplice is not incompetent as a'’ witness because of participation in the crime' charged, but that his testimony, if believed by the jury, might be of sufficient, weight to sustain a verdict of guilty even though not corroborated or supported by other evidence. The court, however, went on to charge that the jury should keep in mind that the testimony of an accomplice is to be received with caution and weighed with great care, and that they should not convict a defendant upon the unsupported testimony of an accomplice unless they believe such testimony to be true beyond a reasonable doubt. This cautionary instruction is in keeping with the better practice.
We are of the view that there was no reversible error in the trial court’s conduct of the trial or in its instructions; and the judgment of the District Court is accordingly affirmed.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer: |
songer_casetyp1_7-2 | E | 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".
Elizabeth L. FERGUSON, Appellant, v. Richard S. SCHWEIKER, Secretary United States Department of Health and Human Services.
No. 84-1607.
United States Court of Appeals, Third Circuit.
Argued May 2, 1985.
Decided June 11, 1985.
Eric J. Fischer (Argued), Community Legal Services, Inc., Philadelphia, Pa., for appellant.
Edward S.G. Dennis, Jr., U.S. Atty., Serena Dobson, Asst. U.S. Atty., E.D. Pa., Beverly Dennis, III, Regional Atty., Edith M. Ho (Argued), Asst. Regional Atty., Office of the Gen. Counsel, Dept, of Health & Human Services, Philadelphia, Pa., for ap-pellee.
Before GIBBONS and HIGGIN-BOTHAM, Circuit Judges and SAROKIN, District Judge .
Hon. H. Lee Sarokin, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Elizabeth L. Ferguson appeals from summary judgment in this Supplemental Security Income (“SSI”) case in favor of the Secretary of Health and Human Resources. In April of 1980, Ferguson had applied for SSI benefits alleging that she was disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. § 1381 (1982), and § 1382c(a)(3)(A) (1982) et seq. Her claims were denied at all administrative levels and the district court held the Secretary’s decision to be supported by substantial evidence. Ferguson appeals the Secretary’s determination that her impairments are not “severe” within the meaning of 20 C.F.R. § 416.920(c). We conclude that Ferguson has submitted sufficient evidence to prove a prima facie case of disability under the standards announced by this court in Rossi v. Califano, 602 F.2d 55, 58 (3d Cir.1979), and that the Secretary failed to meet the burden of proof established by Rossi for overcoming a claimant’s prima facie claim for benefits. We, therefore, reverse and remand for entry of an order directing the Secretary to pay disability benefits.
I.
Factual Background
Ferguson is 67 years old, has a seventh grade education, has received no vocational training and claims to have been disabled since 1967 or 1968. Her memory of her job positions is vague and confused, but she acknowledges that, from 1952 through 1967, she performed domestic work in private homes that required frequent bending and reaching while mopping, vacuuming, sweeping, and cooking. From 1962-67, Ferguson also operated a power sewing machine with foot controls and did some light hand sewing. In 1978, she attempted to work as a salad maker five days a week, three hours a day. The latter position required her to stand most of the time, walk a great deal, and constantly bend and reach. Ferguson testified that she lifted no more than 15 pounds on this job. She used both hands for washing and cutting the salad and for serving the salad to customers. She lasted only three months in this position.
Dr. Henry Scott, a general practitioner, has been Ferguson’s treating physician since 1968. Dr. Scott’s letters and clinical notes indicate that Ferguson visited Dr. Scott consistently from 1968 through December of 1982 and that, over this period, he treated her for hypertensive cardiovascular disease, chest pain, lower back pain, anxiety neurosis, degenerative joint disease, headaches, fungus infection of both hands, bronchitis, diabetes-mellitus, and kidney problems. Tr. 194-95, 196-99, 209, 222-79, 284. Her medications since 1979 include arlidin, hydrodiuril, valium, clinoril, antivert, lotrimin, persantine, and a variety of remedies for upper respiratory infections. Tr. 199.
Beginning in 1980, Ferguson filed three separate SSI applications with the Social Security Administration claiming disability dating back to 1968 due to hypertensive heart disease, hardening of the arteries, bronchitis, asthma, and a fungus infection. The three applications were consolidated and only evidence submitted after December 21, 1977 was considered.
At all levels of agency review, the Secretary had access to Dr. Scott’s written assessments of Ferguson’s condition, which, without exception, classified Ferguson as “disabled” Tr. 196, 284, “not employable” Tr. 196, and “not able to do any work without endanger [sic] to her health and those around her.” Tr. 195. By late 1982, in a letter to an Attorney for the Community Legal Services, Dr. Scott opines that Ferguson’s health was deteriorating. He states that Ferguson has painful and swollen hands which emit a foul odor most of the time due to onychomycosis (chronic fungus infection of both thumbs) and that when attacks are acute she has difficulty holding objects. Dr. Scott also notes that (1) Ferguson experiences shortness of breath, probably due to her hypertensive cardiovascular disease, which is made worse when she sits or rises on a frequent basis; that (2) she cannot lift twenty pounds occasionally or ten pounds frequently without placing an excessive burden on her heart; and that (3) under minor physical or mental stress, Ferguson’s heart condition could lead to heart failure. Finally, Dr. Scott reports that other tests and lab reports indicate that Ferguson has mild diabetes, degenerative joint disease, gouty arthritis, some kidney deterioration, and arthritis in her joints that limits her ability to bend, walk, or stand. Tr. 194-95, 213, 215.
In another set of correspondence, Dr. Scott notes that (1) beginning in 1980 Ferguson complained of chest pains and that these pains today are aggravated when she walks or climbs stairs; (2) although the drug persantine gives some relief, “[f]rom a cardiac standpoint she has been advised against over-exertion, which includes prolong [sic] standing, walking, bending, climbing or running;” (3) her arthritis, complicated by gout, has not improved, causing her stiff knees at times, making it difficult for her to walk; (4) although her blood pressure is controlled by hydrodiuril, “medically she has suffered some damaged [sic] to her kidneys, heart and possibly her brain” and (5) she has recently developed a fine tremor in her head, probably resulting from hardening of the arteries due partially to hypertension. Tr. 196.
Two weeks later, Dr. Scott wrote again to add that (1) Ferguson’s cardiovascular system had deteriorated; she had developed severe shortness of breath and chest pains on exertion; (2) her fingers remained sore and infected so that it occasionally was very difficult for her to use them; and (3) in spite of adequate medication, her health had further deteriorated. Tr. 199.
By 1983, Ferguson’s situation had worsened. She testified before the Administrative Law Judge that she experiences migraine headaches at least three times a week, has difficulty walking more than fifteen minutes, or sitting for more than six minutes, and experiences dizzy spells. Tr. 86, 88-89. She suffers chest pains twice a day that are temporarily relieved by nitroglycerin. She also experiences pain in her legs, back, and hips, for which she takes clinoril and valium. Tr. 88-98, 107-08. She also claims that she cannot lift a ten-pound bag due to the pain in her back and chest. Tr. 105.
Ferguson’s normal routine is to arise at 7:30 a.m., make breakfast and sit “as long as I can,” then lie in bed from 10:00 a.m. to 2:00 p.m., and from 3:00 p.m. to 5:00 p.m. Tr. 108-09. She is able to make her own bed, get dressed (though she experiences some difficulty with the latter task due to pain in her hands), wash the dishes, dust, machine launder, and attend short church services. Tr. 115. She testifies that she cannot drive, vacuum or shop for groceries alone. Tr. 108-13.
Of primary importance, Ferguson states that she will never be able to return to any of her jobs because (1) as a salad maker, pain in her legs and hips creates an inability to stand or bend; (2) as a machine operator, she cannot sit for the requisite amount of time; and (3) as a domestic helper, she cannot bend, stand very long, or push a vacuum sweeper. Tr. 122-24.
II.
Decision of the Secretary
After considering the medical evidence and Ferguson’s testimony, the Administrative Law Judge (AU) determined that Ferguson did not have a “severe” impairment or combination of impairments that significantly limit her ability to do basic work activities. This conclusion was based on findings; to wit, that Ferguson’s hypertension has not resulted in end-organ damage and is controlled adequately by medication; that objective evidence regarding her complaints of chest pain and shortness of breath is limited to “non-specific EKG findings,” and that her testimony that she cannot lift ten pounds is against the weight of the medical evidence. He also determined that there is no evidence of a symptomatic kidney problem, no clinical explanation for the complaints of headaches, and no reason to believe Ferguson’s onychomycosis is vocationally significant. The AU believed that the objective evidence regarding any pain Ferguson feels she might have in her joints indicates only mild arthritis, and that her complaints of anxiety neurosis and of poor vision cannot be considered severe since she has not taken steps to see a psychiatrist or an optometrist.
The AU also found Ferguson’s subjective testimony regarding her pain and shortness of breath lacking in credibility: “In view of the objective medical evidence and the claimant’s appearance and demean- or, the undersigned does not believe that the claimant experiences pain or shortness of breath of such frequency, severity and duration as to significantly interfere with her ability to do work.” Tr. 18.
Finally, the AU refused to give weight to Dr. Scott’s conclusion that Ferguson is disabled, finding it not supported by the objective medical findings: “They [Dr. Scott’s conclusions] are too speculative to support a finding of disability.” Tr. 18.
Thus, Ferguson’s application for Supplemental Security Income Benefits was denied. The Appeals Council adopted the recommendation of the AU. Tr. 5-6.
III.
The District Court Opinion
Ferguson argued before the district court that the AU failed to give sufficient weight to Dr. Scott’s statements as required by Rossi v. Califano, 602 F.2d 55 (3d Cir.1979). Ferguson claims that her subjective evidence, supported by the statements of her treating physician, were sufficient to establish a prima facie case of disability under Rossi. The district court disagreed, holding Rossi inapplicable when the “credibility” and “compentency” of the treating physician’s statements are in issue:
Since Rossi does not require that the AU accept all statements by the claimant’s treating physician as credible and beyond disbelief which are unsupported by objective evidence, the court finds substantial evidence on the record to support the AU’s decision to find the physician’s assertions unpersuasive and speculative.
District Court Opinion, App. 126 (citations omitted). Moreover, the district court concluded that Ferguson’s failure to present objective medical evidence, when viewed against the backdrop of evidence refuting many of the alleged disorders, supported the Secretary’s decision of non-disability.
IV.
The Rossi v. Califano Standard in the Context of an SSI Case
Ferguson appeals the Secretary’s determinations, claiming they are not supported by substantial evidence. Additionally, she argues that the Secretary’s decision evidences (1) a failure to allocate properly the burdens of proof; (2) an impermissible substitution of the Administrative Law Judge’s medical judgment for that of the treating physician; (3) the failure to accord the treating physician’s opinion its proper weight; and (4) improper refusal to credit the appellant’s testimony of pain, when objective medical evidence of an impairment is of record.
Ferguson argues (1) that she has submitted enough evidence to prove a prima facie case; (2) that the burden shifted to the Secretary; and (3) since there is no other medical evidence in the record the Secretary has not met the burden of countering the claimant’s evidence of disability. We agree.
In Rossi v. Califano, 602 F.2d 55 (3d Cir.1979) [a Title II case], we stated:
There is a two-pronged test for social security act disability: (1) determination of the extent of disability; and (2) determination whether that impairment results in inability to engage in substantial gainful activity. A claimant satisfies her initial burden of proof by showing that she is unable to return to her customary occupation— Once she has made such a demonstration, the burden of proof shifts to the Secretary to show that the claimant, given her age, education, and work experience, has the capacity to perform specific jobs that exist in the national economy.... If there is no finding as to the availability of alternative employment a denial of disability benefits can only be sustained if there is medical evidence in the record that claimant’s impairment did not prevent her from engaging in her former occupation.
602 F.2d at 57 (emphasis added, footnotes omitted). Thus, under proper disability procedures, Ferguson must satisfy her burden by showing an inability to return to former work. The burden then shifts to the Secretary to show that there is other employment the applicant is capable of performing. Rossi, 602 F.2d at 58; Dobrowol-sky v. Califano, 606 F.2d 403 (3d Cir.1979).
We believe that for purposes of her SSI claim Ferguson has produced sufficient supporting medical documentation to prove a prima facie case of disability and that the burden of proof shifted to the Secretary. As noted above, Dr. Scott’s conclusions, as of late 1982, were that (1) under minor physical or mental stress, Ferguson’s heart condition could lead to heart failure; (2) Ferguson experiences severe shortness of breath and chest pains upon exertion; (3) she cannot lift twenty pounds occasionally or ten pounds frequently without placing an excessive burden on her heart; (4) her chest pain is made worse when sitting and rising on a frequent basis; and (5) she has been advised against overexertion, which includes prolonged standing, walking, bending, climbing, and running in order to protect her heart. All of these conclusions were based on laboratory reports contained in the record. We believe that the evidence offered by the treating physician is substantial evidence for the conclusion that Ferguson is significantly limited in those physical abilities necessary to do basic work activities such as lifting, pushing, pulling, carrying, prolonged standing, walking, bending, climbing, and running, and also for the determination that she cannot return to any prior work which involves the same. There is simply no medical opinion in the record to the contrary.
Under Title II and Rossi, supra, it is the claimant’s burden to prove, by medical evidence, that she cannot return to past employment. Ferguson has more than met this burden. Furthermore, if the AU believed such evidence was inconclusive or unclear, it was incumbent upon him to secure whatever evidence he believed was needed to make a sound determination.
The applicant, having satisfied her initial burden of proof by demonstrating her inability to return to her former job as salad maker, domestic, or machine operator, the burden of proof shifted to the Secretary to show that Ferguson, given her overall condition, nevertheless retained sufficient capacity to perform specific jobs existing in the national economy.
We also note that the AU acted improperly in discrediting the opinions of Dr. Scott by finding them contrary to the objective medical evidence contained in the file. By independently reviewing and interpreting the laboratory reports, the AU impermissibly substituted his own judgment for that of a physician; an AU is not free to set his own expertise against that of a physician who presents competent evidence. Again, if the AU believed that Dr. Scott’s reports were conclusory or unclear, it was incumbent upon the AU to secure additional evidence from another physician.
As to Ferguson’s complaints of subjective pain, the Secretary’s acts are at odds with the Third Circuit standard, which requires (1) that subjective complaints of pain be seriously considered, even where not fully confirmed by objective medical evidence, Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981); Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir.1971); (2) that subjective pain “may support a claim for disability benefits,” Bittel, 441 F.2d at 1195, and “may be disabling,” Smith, 637 F.2d at 972; (3) that when such complaints are supported by medical evidence, they should be given great weight, Taybron v. Harris, 667 F.2d 412, 415 n. 6 (3d Cir.1981); and finally (4) that where a claimant’s testimony as to pain is reasonably supported by medical evidence, the AU may not discount claimant’s pain without contrary medical evidence. Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir.1984); Smith, 637 F.2d at 972.
Based on this record, we believe that Ferguson’s subjective complaints of pain and shortness of breath should have been credited since they are supported by Dr. Scott’s statements and by evidence of medical impairments “which could reasonably be expected to produce the pain or other symptoms alleged.” Green, 749 F.2d at 1069 (3d Cir.1984) (referencing Section 3(a)(1) of the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, reprinted in 130 Cong.Rec. H9821-9827, 20 C.F.R. § 416.929 (1984)). Under the Act, objective medical proof of each and every element of pain is not required. Id. at 1070; see also Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.1983) (testimony of subjective pain is entitled to great weight, particularly when supported by competent medical evidence).
Because the AU determined that Ferguson’s impairments are not severe he did not reach the question of whether her impairments prevent her from returning to her customary employment as salad maker, sewing machine operator, or domestic assistant. Unless a medical opinion to the contrary is obtained, the evidence of record appears to establish that Ferguson cannot return to her past work.
Since Ferguson has established a prima facie case of disability, since there is no substantial contrary evidence, and since there is no evidence of the possibility of alternative employment, we find the Secretary’s decision not supported by substantial evidence. The judgment of the district court will be reversed and remanded with a direction for an order directing the Secretary to pay disability benefits.
. 42 U.S.C. § 1381 establishes a national program to provide supplemental security income to individuals who have attained age 65 or are blind or disabled. 42 U.S.C. § 1382c(a)(3)(A) reads:
An individual shall be considered to be disabled for purposes of this subchapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months____
. 20 C.F.R. § 416.920(c) reads:
You must have a severe impairment. If you do not have any impairment(s) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.
. The record contains only evidence and reports submitted by Dr. Scott, and supportive test re-suits. The record does not contain medical reports in support of the Secretary’s position.
. The statutory language in Title II which places the burden of proof as to the medical basis of a finding of disability on the claimant at all times is simply not present in Title XVI. See 42 U.S.C. § 423(d)(5) (1976). For example, although the definitions of disability for the Supplemental Security Income for the Aged, Blind and Disabled Program (Title XVI of the Act) are practically identical to the definitions in Title II (cf. 42 U.S.C. § 1382c(a)(3)(A), (B), (C) & (D) with 42 U.S.C. § 423(d)(l)(2), (3) & (4)), a provision such as § 423(d)(5) is noticeably absent from Title XVI.
The reason for such absence is explained in the legislative history. The legislative history makes clear that the SSI benefits program is a program for needy aged, blind, and disabled who do not have insured status and thus do not qualify for benefits under Title II. H.R. No. 92-231, reproduced in 1972 U.S.Code Cong. & Ad. News 4989-92, 5133. Thus, although the definitions of disability under both programs are the same, the burden of producing the medical documentation required to establish disability is not:
Your committee recognizes that under a needs program, it would be unreasonable to expect a claimant to pay for the medical evidence necessary to establish disability or blindness or even to provide the same extent of medical documentation required under Title II of the Social Security Act. Thus, the Secretary would be expected to secure the needed medical evidence and [sic] the evidence was needed to make a sound determination.
Id. at 5134 (emphasis added). Thus, in an SSI case, if there is insufficient medical documentation or if the medical documentation is unclear, it is incumbent upon the Secretary to secure any additional evidence needed to make a sound determination.
. See Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir.1983); Kent v. Schweiker, 710 F.2d 110, 114-15 (3d Cir.1983); Kelly v. Railroad Retirement Board, 625 F.2d 486, 494 (3d Cir.1980); Fowler v. Califano, 596 F.2d 600, 602-03 (3d Cir.1979); Rossi v. Califano, 602 F.2d at 58; Gober v. Matthews, 574 F.2d 772, 797 (3d Cir. 1978); see also Wallace v. Secretary, 722 F.2d 1150, 1155 (3d Cir.1983) (opinion of a treating physician is entitled to substantial weight).
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_applfrom | L | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Samuel B. GASS et al., Respondents.
No. 6793.
United States Court of Appeals First Circuit.
Heard March 7, 1967.
Decided May 5, 1967.
Allison W. Brown, Jr., Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., Washington, D. C., were on brief, for petitioner.
Irving Isaacson, Lewiston, Me., for Samuel B. Gass, respondent.
Courts Oulahan, Washington, D. C., with whom Charles S. Rhyne, Alfred J. Tighe, Jr., Washington, D. C., Benjamin P. Lamberton, III, and Rhyne & Rhyne, Washington, D. C., were on brief, for Lipman Bros., Inc., et al., respondents.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
This is a petition to enforce an order of the National Labor Relations Board issued against the respondents, Gass and Lipman, based on Board findings that these respondents engaged in certain unfair labor practices. The case arises out of the alleged unlawful discharge of a long time Gass employee. From this charge other issues developed upon which the Board made additional unfair labor practice findings, all of which are hereinafter discussed.
The pertinent background facts are as follows. The Lipmans are in the poultry business with principal places of business in Augusta and Winslow, Maine. They raise, process and sell poultry on a large scale through the medium of seven corporations. These corporations are controlled by three brothers, Bernard, Frank and Harold Lipman. Respondent Samuel B. Gass, a Maine corporation (hereinafter Gass) is a trucker with a principal place of business in Augusta. It is a family corporation in which one Sam Gass is president and his wife is treasurer. Mrs. Gass is a sister of the Lip-man brothers. Actually Gass has only one customer — Lipman—and most of the time is engaged in hauling poultry feed from Lipman’s feed mill in Augusta to some 150 to 200 poultry farms within a general fifty mile radius where Lipman raises its chickens. Gass operates nine specially equipped delivery trucks and employs seven drivers, a mechanic and a mechanic-driver. From this business it grosses in excess of $100,000 a year.
Miville, the discharged employee in question, was one of these seven drivers. In August 1964 he and another driver succeeded in getting all nine Gass employees to sign union authorization cards. On the day that the last of the drivers signed up, (August 19), one Morgan, the superintendent of the Lipman feed mill in Augusta, heard about this union activity. He contacted Sam Gass and immediately tried to discourage it. The next day (August 20) the following occurrences took place. Early that morning Harold Lipman discharged Miville, ostensibly for other than union reasons. When Miville remarked that he was really being fired on account of his union activities, Harold replied “You didn’t have to sign the papers,” meaning the union papers. Then Harold asked Mi-ville how many Gass drivers had signed up with the union and when Miville told him they had signed up “one hundred per cent,” Harold Lipman angrily remarked “I’m taking the trucking outfit over.” After rebuking Miville he ordered him off the Lipman property. Also on that day Gass received written notice from the union stating that it represented a majority of the employees and demanding collective bargaining rights. Shortly afterwards Sam Gass showed this notice to one of the Lipmans. On this same morning Miville brought one Hastings, the president and business agent of the union, to the truck terminal to see Sam Gass about Miville’s job. Sam was not available at the time but they were confronted by Mrs. Gass who, when she learned who Hastings was, subjected him to a strong outburst of anti-union animus and ordered him off the premises. An hour or so later Miville telephoned Sam Gass to try to arrange a conference between him and Hastings. At that time Mrs. Gass broke in on the telephone conversation and again expressed strong antiunion feelings. At the end of this conversation when Mi-ville asked Sam Gass whether he (Mi-ville) was “all through” Sam replied “Lipman don’t want you on the farm. I have no more work for you.” That afternoon Sam Gass informed his truck drivers he was losing his business and that their employment would end as of the following day.
The next morning, Friday, August 21,' one of the Gass employees told Morgan he had heard that Sam was losing his business and asked what would happen if the drivers withdrew from the union. Shoirtly thereafter word came back through Morgan that if the drivers got together with Sam Gass before 5 o’clock that day and “get this straightened out” the Lipmans “would give him back his business.” Thereupon a hurried conference was called at which the truck drivers, Mr. and Mrs. Gass and Morgan, were present. As a result of this meeting the drivers agreed to withdraw from the union and Gass continued operating the business. That afternoon two drivers approached Sam Gass about Miville getting his job back now that they had withdrawn from the union. Sam stated he would do all in his power to have Mi-ville reinstated but added that he didn’t know if the Lipmans wanted Miville back.
The following Monday, August 24, Sam Gass offered Miville his job back “under the old conditions” but Miville replied that he would come back to work only if he “could talk freely with the boys about a union.” Sam said “under those circumstances I have no work for you” and hired a new driver who was there seeking employment at the time.
Some two weeks later Miville received a letter from Gass’ attorney stating he was authorized to offer him “immediate and unconditional reinstatement” to his job nothwithstanding he had twice refused reemployment. Upon receipt of this letter on Friday, September 10, Mi-ville went to the terminal and in the absence of Sam told Mrs. Gass he was reporting for work in accordance with the letter. She informed him that a truck would not be available until the following Monday, whereupon Miville left. In a matter of minutes Mrs. Gass appeared at the office doorway to the garage where Miville had stopped to visit and told him she wouldn’t have him or anyone else swearing or insulting her— and threatened to fire him then and there. Miville denied that he swore at or insulted Mrs. Gass. At any rate, the next day he received a telegram from Sam Gass discharging him for “insubordination and profanity to Mrs. Gass” on the previous day. At no time thereafter was Miville offered reinstatement in his job.
On the basis of the above evidence the Board found that the Lipmans were engaged in a single integrated enterprise; that Lipman and Gass were joint employers of Miville and as such discriminatorily discharged and refused to reinstate him in violation of section 8(a) (3) and (1) of the Act; that through respondents’ coercive interrogation and threats of going out of business the Gass drivers were coerced into abandoning their union membership in violation of said section 8(a) (1); and finally the Board found that the respondents refused to bargain with the union in violation of section 8(a) (5) and (1) of the Act. It also rejected the respondents’ contention that the Gass drivers are agricultural laborers and hence exempt from the Act.
Broadly, the respondents resist enforcement of the Board’s order because they contend that none of these findings are supported by substantial evidence. In particular, the respondents vehemently press their contentions that they did not employ and were not joint employers of Miville; that Lipman is not a single integrated enterprise and that the Gass drivers are agricultural laborers and by reason thereof are exempt under section 2(3) of the Act.
It is now so well settled as not to require citation of authority that this court’s function on a petition to enforce an N.L.R.B. order is merely to determine whether on the record as a whole there is sufficient evidence to support the Board’s findings. We think there is substantial evidence to support the Board’s findings. To begin with, we ■call attention to the fact that on a previous petition to enforce an order of the Board against the Lipmans, decided by this court some fifteen months ago, the Lipman corporations admitted and this court found that this same poultry operation was a single integrated enterprise. N. L. R. B. v. Lipman Brothers, Inc., 355 F.2d 15, 21 (1st Cir. 1966). There is no evidence before us of any change in the corporate set-up or modus operandi of this business in the relatively short period since this admission was made. Although this finding does not bind the respondent Gass, it not being a party to the earlier case, we see no reason why we cannot take judicial notice of this admission and of our findings based on it, as far as the respondent Lipman is concerned; and we do so notice this earlier finding. Quite apart from this admission in the earlier case, there is substantial evidence in the record before us that Lipman is a single integrated business enterprise. As above stated, the three Lipman brothers are still the only officers and directors of all seven corporations in question. Together these three brothers own the controlling interest in each of them. From an examination of the part these corporations play in the overall operation of this business, and from the division of responsibilities between the three Lipman brothers — apportioned without regard to corporate lines, it is clear that this is but one large integrated poultry business — not several businesses.S. ***
Also, we think there is substantial evidence in the record to support the Board’s finding that Lipman and Gass were joint employers of the Gass drivers and as such discriminatorily discharged and refused to reinstate Miville. It is evident that although Gass paid the drivers, Lipman held and exercised de facto control over Gass at least insofar as its drivers are concerned. The fact that Lipman could terminate its hauling agreement with Gass at will, plus the fact that Harold Lipman said he was going to take over the Gass trucking operation when he learned that all the Gass drivers had joined the union, demonstrates that Lipman was actually in complete control of the Gass trucking business. Furthermore, almost immediately after learning of the successful union effort led by Miville in signing up the drivers, Lipman embarked upon a campaign of harassment against them and against Miville in particular. This clearly showed antiunion animus on the part of Lipman. Morgan, the superintendent of its feed mill, was critical of the drivers’ actions in joining the union. Lip-man immediately declared the facilities of this mill “off limits” to Gass drivers, which restrictions were removed when the drivers renounced their recently acquired union membership. Finally, Gass and Lipman both “pulled the rug”, so to speak, on all the Gass drivers by threatening that Gass was then and there going to cease doing business, obviously because the Gass drivers joined the union. What better evidence is needed of anti-union animus and coercion?
It is also significant, we think, that Harold Lipman — not Sam Gass — discharged Miville and it was primarily Lipman’s opposition that kept this discharged employee from being reinstated even when Sam manifested a desire to rehire him. Moreover, the events immediately preceding the August 21 meeting at which the drivers agreed to withdraw from the union, further show that in fact Lipman was in control of the Gass trucking operation and for all practical purposes was a joint employer of these drivers. Lipman also directed their daily operations from the feed mill. It was only after the Lipmans had sent word that they would give back the business to Gass on the condition that the matter was “straightened out” that the union withdrawal meeting took place. Obviously the “straightening out” meant renunciation by the drivers of their union membership.
The Board could conclude very reasonably from the facts recited above that the renunciation demanded by Sam Gass and his wife was dictated by Lip-man. Such conduct is unlawful. N. L. R. B. v. Yale Manufacturing Company, 356 F.2d 69, 72 (1st Cir. 1966).
Without repeating the evidence previously mentioned, suffice it to say that we are also of the opinion there was ample evidence that Miville’s discharge was motivated by the fact that he was the prime mover in getting the drivers to join the union. We are convinced that his alleged use of vulgar or abusive language to Frank Lipman and to Mrs. Gass were mere pretexts and not the real cause for his discharge or for his failure to be reinstated. The substantial evidence points to Miville’s union interest and activity as the real reason behind both. Furthermore, we think that from her conduct, the Board could reasonably conclude that Mrs. Gass’ opposition to Mi-ville’s reemployment stemmed from her fear of renewed union activity. As we said in Lipman, supra “In evaluating these discharge situations the pivotal factor is motive” and “the mere existence of a valid ground for discharge is no defense to an unfair charge if such ground was a pretext and not the moving cause.”
Sam Gass’ refusal to talk with the union, Gass’ failure to acknowledge receipt of the union’s demand for collective bargaining and its refusal to contact or talk with the union, as well as the part both Lipman and Gass played in bringing about the drivers’ withdrawal from the union, certainly is sufficient to support a finding that the respondents refused to bargain in violation of section 8(a) (5) and (1) of the Act.
The respondents attack the credibility of some of the General Counsels’ witnesses. In this connection we point to what we said in N. L. R. B. v. Universal Packaging Corporation, 361 F.2d 384, 388 (1st Cir. 1966) “that questions of credibility are for the Board, subject to judicial review only when the Board oversteps the bounds of reason. We shall not substitute our judgment for that of the trial examiner who heard the testimony and observed the witnesses, nor for that of the Board with its vast experience in dealing with labor disputes.”
The contention that the Gass drivers were “agricultural laborers”— and hence not subject to the Act does not impress us. The Supreme Court has held that the definition of agriculture has two distinct branches. Primarily, it includes farming in all its branches, i. e., cultivation, tillage of the soil, dairying, etc. But it also has a broader meaning which “includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with ‘such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672 (1949). Respondents do not contend that the work performed by the Gass drivers in this case is farming. They do insist, however, that the delivery of the poultry feed is in large part work performed on farms and is incidental to the raising of poultry. In disposing of this contention we need only to point out that in Bowie v. Gonzalez, 117 F.2d 11 (1st Cir. 1941), and later in Calaf v. Gonzalez, 127 F.2d 934 (1st Cir. 1942), we held that the transporting of sugar cane from farms to a sugar mill was incidental to the work of the mill. Similarly, we think the delivery of the poultry feed in this case is incidental to the work of the feed mill — rather than the farms. The mere fact that the success of raising the chickens depends to a great extent upon trucking poultry feed to these farms, or the further fact that this work is sometimes done by farm laborers, does not make these drivers agricultural laborers. It is significant that these drivers are not employed or paid by the farms nor are they under the control of the farmers. It would also seem that the delivery of poultry feed here is much like the delivery of water or electricity to farms. See Farmers Reservoir & Irrigation Co. v. McComb, supra. Surely no one would seriously contend that this makes employees of these companies, who go on the farms in connection with their jobs, agricultural laborers — however long they work there. Consequently, in our opinion the Board was amply justified in finding that the work of the Gass drivers was incidental to the operation of the feed mill rather than to the operation of any farmer or farm.
Moreover, although we do not decide the question, even if these deliveries were incidental to farming we doubt that the physical presence of the drivers on the farm premises, while such deliveries are being made, is the kind of activity that Congress intended would qualify them for this exemption.
Finally, on the record before us, we find no error in the scope of the Board’s order. The evidence was sufficient to warrant the finding that Gass and Lip-man were joint employers and therefore the order covering both is justified. We do not interpret this order as imposing any unwarranted hardship on the respondent Lipman. All other points raised by the respondents have been considered and found to be without merit.
A decree will be entered enforcing the order of the Board.
. Lipman owns ten of these farms. The rest are leased from farmers who are engaged by Lipman to raise the chickens as part of their lease arrangement. Lipman retains title to the chickens, supplies the feed, etc.
. Following the conversation with Sam Gass, Morgan told two of the drivers that Sam Gass knew what the employees were up to; that he (Morgan) thought they had jumped into the union too quickly and should have first talked it over with Sam Gass. Later that day signs were posted at the feed mill where the Gass drivers loaded up their trucks daily and while there used the rest room facilities and vending machines, that the mill facilities were now “off limits” to them.
. As Miville was about to start work, Sam Gass told him that Frank Lipman wanted him off the Lipman property and also wanted to see him that morning at the feed mill for using vulgar language to him a few days before in the presence of others. When Miville went to the mill looking for Frank, his brother Harold replied that he would take care of him and told him he was “all through.” The reason given to Miville for this action was “You’ve been shooting your mouth off at my chicken farmers and been fooling [with] women on the farms.”
. Truck Drivers Warehousemen and Helpers Union Local No. 340 affiliated with the International Brotherhood of Teamsters, etc.
. She stated “We don’t want to talk to no union man. We don’t want no union man around here.”
. Tlie business arrangement between Gass and Lipman was oral and could be can-celled at the will of the latter.
. At this meeting the employees told Mr. and Mrs. Gass that they had talked with Morgan and indicated they would like to straighten things out and get back to normal. Mr. and Mrs. Gass said that the drivers had to send the union a registered letter and a telegram signed by all of them, withdrawing from the union. A letter was then composed by one of the drivers with the help of Sam Gass and was signed by all the drivers and taken to the post office where it was registered and mailed. From there the drivers went to the telegraph office where each driver signed and sent a telegram to the union. This whole affair took about three hours working time but this loss of time was not deducted from the drivers’ pay.
. Later Morgan told one of the drivers that if they had not withdrawn from the union when they did, they would have been working for him the following Monday under far more restrictive rules relating to coffee breaks and other privileges previously extended to the Gass drivers at the feed mill.
. Five of the Lipman controlled corporations are engaged in the following activities which contribute directly to the final poultry product. Pinecrest Poultry Farms, Inc. hatches chickens and sells them to Lipman Poultry Farms, Inc., which grows these chickens and then sells them to Lipman Bros., Inc. The latter kills, dresses and sells the dressed poultry on the market and sells the byproducts to By-Products, Inc. This corporation processes these by-products and sells them to Samuel Lipman Sons, which uses them in making poultry feed which it sells to Lipman Poultry Farms, Inc., that in turn feeds it to the chickens being raised on the various farms.
Also, all three Lipman brothers are actively engaged in the day to day Lipman operations which are divided between them, as follows: Bernard has charge of sales; Frank supervises the feed mill and the raising of chickens and Harold looks after the rolling stock, plant maintenance and the production of the dressed poultry.
. Section 2(3) of the Act, 29 U.S.O. § 152(3) provides in pertinent part “The term ‘employee’ * * * shall not include any individual employed as an agricultural laborer * *
. The record shows that at the farms it takes the drivers from an hour to an hour and a half to discharge the load of feed into the poultry house storage bins.
. Respondents call our attention to Nix v. Farmers Mutual Exchange of Calhoun, 218 F.2d 642 (5th Cir. 1955) and Mitchell v. Georgia Broiler Supply, Incorporated, 186 F.Supp. 341 (N.D.Ga.1960). These cases are clearly distinguishable from the instant one on their facts and to the extent that Mitchell supports Gass we do not follow it.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_respond2_1_3 | 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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
Sargent CAUEFIELD and Jim Lucas, Appellants, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK et al., Appellees.
No. 23412.
United States Court of Appeals Fifth Circuit.
June 15, 1967.
J. D. DeBlieux, Baton Rouge, La., for appellants.
Robert J. Vandaworker, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for Southern Farm Bureau Cas. Ins. Co.
Maurice J. Wilson, of Breazeale, Sachse & Wilson, Baton Rouge, La., for defendant-appellee, Fidelity & Casualty Co. of New York.
Before HUTCHESON, GEWIN and THORNBERRY, Circuit Judges.
HUTCHESON, Circuit Judge:
These cases, consolidated for trial, were brought by Sargent Cauefield and Jim Lucas to recover damages for the alleged desecration of a Louisiana cemetery in which relatives of theirs are buried. The district court granted a motion by defendants to dismiss on the theory that the suit was foreclosed by the doctrine of judicial estoppel, as applied in Louisiana, due to a previous state court judgment which denied a similar claim made with respect to the same cemetery. We affirm.
The background details of this controversy and the legal principles involved were set forth in full in the opinion of the district court reported at 247 F.Supp. 851. It, therefore, suffices ' that they be summarized only briefly here. The owner of a tract of land on which a cemetery is located in Louisiana, feeling that the cemetery had become too overgrown with brush, decided to clear the land. In March, 1956, he hired a dirt contractor to help him do so. After the land was cleared, a total of forty-one relatives of those buried in the cemetery filed numerous suits in the state courts, therein alleging that the cemetery had been desecrated as a result of the cleaning operations. One of those suits, filed by one Sid Thomas against the cemetery owner, the contractor, apd their insurers, was commenced and tried before a jury. In the trial lasting nine days, all the interested relatives testified, and the appellants here were active participating witnesses. After all the evidence relating to desecration was presented, the jury found that no desecration had occurred, and the verdict was affirmed on appeal.
The instant ease was filed originally by appellants in the court below in November, 1956. The record shows that the matter was continued indefinitely until after completion of the Thomas case in the state courts. It was not until the Thomas case was concluded that this case was considered on its merits. Defendants’ motion to dismiss was granted in 1965. It thus appears that the Thomas case tacitly was intended to resolve all the numerous identical claims that the cemetery had been desecrated. Nevertheless, after appellate procedures in the Thomas case were exhausted, appellants Cauefield and Lucas, represented by the same attorney who had represented Thomas and all the other plaintiffs in the state courts, requested the same relief from the court below which had been denied to Thomas by the Louisiana state courts.
The appellants concede that the issues concerning desecration which they ask to be tried in federal court would be identical to those already tried in the state court and resolved against Thomas. The appellants also concede that the evidence and testimony they would be able to produce would not differ in the least from that which they themselves and the other relatives presented and which was passed on in the Thomas case. These two concessions are particularly significant in light of the proof necessary to support an allegation of cemetery desecration in Louisiana. The plaintiff needs only to prove that any part of the cemetery has been desecrated. Humphreys v. Bennett Oil Corp., 195 La. 531, 197 So. 222, 228 (1940). Thus it was not necessary for Thomas to have proved that his own relative’s grave had been disturbed; it would have been sufficient for the jury to have accepted the testimony of any witness, including appellants, that any grave in the cemetery had been desecrated. Consequently, it is clear that all evidence favorable to appellants which could be presented in another trial has already been rejected by the state courts. Nonetheless, they insist that the district court was in error in applying the doctrine of judicial estoppel for the reason that, the plaintiffs of this case being different from that in the Thomas case, the alleged requirement that the parties in the two cases be identical is lacking.
We observe at the outset that under Louisiana law, which governs this diversity action, the doctrine of res judicata plainly does not apply to the instant case. The concept of res judicata is strictly defined by the Louisiana Civil Code to require identity of parties, and the state courts have applied this definition uncompromisingly.
On the other hand, the doctrine of judicial estoppel, a common-law concept recognized in Louisiana, California Co. v. Price, 234 La. 338, 99 So.2d 743, 747 (1957), has been viewed less rigidly. Although identity of parties also is generally considered a requisite for its application, the Louisiana courts have seen fit to fashion exceptions in circumstances analogous to those presented here. We conclude that the underlying principle of those exceptions also controls the instant case.
The first case making such an exception was Muntz v. Algiers & G. St. Ry., 116 La. 236, 40 So. 688 (1906). In the plaintiff’s first suit for negligence against a lessee of a railroad, it was decided that the lessee was not negligent. The plaintiff subsequently proceeded against the lessor railroad on the theory that it was liable vicariously for its lessee’s negligence which the plaintiff attempted to have litigated again. The Louisiana Supreme Court held that the former judgment in favor of the lessee barred the subsequent suit against the lessor even though the defendants were not identical. A similar holding obtained in McKnight v. State, 69 So.2d 652 (La. Ct.App.1953). There the plaintiff had lost a suit based on negligence against three state police officers. He then sued the state, the employer of the officers, seeking to apply the doctrine of respondeat superior. Relying on Muntz, the court dismissed the latter suit.
The Louisiana Supreme Court recently has commented on those two cases. In Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), although it first noted that both Muntz and McKnight had been erroneously founded on the doctrine of res judicata due to the absence of identity of parties, it nevertheless approved the results reached and their rationale “that a plaintiff’s cause of action abates against the person secondarily liable when it is shown that he has already litigated with the tortfeasor [who has been] held to be without fault. Accordingly, a plea in bar of judicial estoppel would have been appropriate pro-cedurally.” 124 So.2d at 922. (emphasis added).
This principle again was expressed in Bowman v. Liberty Mut. Ins. Co., 149 So.2d 723 (La.Ct.App.1963). The plaintiff had sued the employer first in a federal district court to recover damages arising from the alleged negligence of the defendant’s employee while acting in the scope of employment. After losing that suit, plaintiff brought an action in the state court against the employee. The state court declared that the real Issue, the employee’s negligence, had already been determined and that to permit a new trial would only condone a multiplicity of trials. Notwithstanding the defendants were not the same, the second suit was dismissed.
This line of cases evidences a willingness by the Louisiana courts to relax the identity-of-parties requirement with respect to the application of judicial estoppel where it will prevent fruitless relitigation of an issue which already has been judicially determined. Thus far this attitude seems to have found expression only where vicarious or secondary liability is involved, such as that arising out of an employer-employee or lessor-lessee relationship. We are convinced, however;, that presented with the unusual facts of the case before us, the Louisiana courts also would find that appellants are estopped by the state court judgment in order to preclude re-litigation of the desecration issue. In reaching this opinion, we think it significant that the nature of this issue is such that desecration could have been established in the Thomas case by evidence of any relative, including the evidence offered by appellants, that any part of the cemetery had been desecrated. We reiterate that appellants admit that they can come forward with no evidence which was not produced at the Thomas trial. Under these circumstances, we are further convinced that absolutely nothing would be gained were appellants permitted to pursue their action in the federal courts. We therefore hold that under the particular facts of this case the district court correctly applied the doctrine of judicial estoppel in granting the motion to dismiss.
The judgment is affirmed.
. Art. 2286, LSA-Civil Code provides: “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” (emphasis added).
. This language was criticized in McMahon, Civil Procedure, 22 La.L.Rev. 370, 374 n. 16 (1962).
. The court in Bowman relied on res judieata for its decision. The reasoning of Williams v. Marionneaux, supra, indicates that this case should be regarded the same as were Muntz and McKnight: the result is correct since the application of judicial estoppel would have been appropriate.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_circuit | E | 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.
Connie Nell LEWIS and Juanita Gibson Lewis, Appellants, v. UNITED STATES of America, Appellee.
No. 14939.
United States Court of Appeals Fifth Circuit.
Nov. 23, 1954.
John P. Koons, Dallas, Tex., for appellants.
John C. Ford, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
HUTCHESON, Chief Judge.
Filed on May 22,1953, by Juanita Gibson Lewis, the widow and principal beneficiary of Harvey C. Lewis, who died on June 11, 1945, on behalf of herself and as next friend for their minor child, Connie Nell Lewis, his contingent beneficiary, the suit was brought to recover total disability benefits provided for in National Life Insurance Company policy No. N-15-931-199 issued to deceased on March 24, 1944.
The claim, a double barrelled one, was: that at the time of assured’s death on June 11, 1945, he was, and had been since February 23, 1945, when the policy was in force by payment of premiums, totally and permanently disabled, and the policy was therefore in full force and effect; that on July 8, 1945, Juanita Lewis, as widow and principal beneficiary, inquired of the Veterans Administration regarding the insurance policy and thereby in effect made a claim at once for the proceeds of the policy and for waiver of premiums under Sec. 802 (r) of the National Service Life Insurance Act of 1940, as amended; that in response to her inquiry she was advised that the policy had lapsed when in truth and in fact by virtue of Section 802(r) above, the insurance was in full force and effect; that in 1950, she requested a reopening of the claim, and on August 13, 1951, she filed on behalf of the minor, the contingent beneficiary, a claim under the policy for total disability and the claim was on September 9, 1952, denied; that the interest of said minor beneficiary accrued on the date of the death of the insured, and if it be held that she, as principal beneficiary was culpably negligent in not prosecuting her claim and that it is barred, the claim and right of the minor contingent plaintiff, because of her continuing minority, persists as valid and undefeated by laches, limitation or other bar.
The defenses were: failure of the complaint to state a recoverable claim; a denial that the mere inquiry about the policy made by the principal beneficiary in 1945 was or could have been a claim for waiver of premiums or for the proceeds of the policy and if it was the latter, the reply by the Veterans Administration on February 28, 1946, was a denial of such claim; an admission that a claim was filed in 1951 on behalf of the minor contingent beneficiary; and an allegation that the principal beneficiary being still in life, the contingent beneficiary had and has no interest entitling her to make a claim or sue upon it.
The issues thus joined and the facts stipulated, plaintiffs urged upon the district judge: that Sec. 802(r), supra, was self operating; that the admitted facts established compliance therewith and protected the rights of both principal and contingent beneficiary and that the minority of the contingent beneficiary protected and preserved her right to sue.
The defendant, on the other hand, insisted: that Sections 802(r), supra, and 802(n), Title 38 U.S.C.A., requiring an application for waiver of premiums, must be considered together and as requiring in this case a timely application by the principal beneficiary for waiver of premiums; that, so considered, the evidence furnishes no basis for the judgment sought; and that the principal beneficiary’s failure to present a claim for waiver of premiums within one year after insured’s death and her failure to bring an action within the six years limited by 38 U.S.C.A. § 445, has completely barred the right to sue.
The district judge, agreeing with the defendant, gave judgment accordingly. Appealing from this judgment on an agreed statement of facts, plaintiffs are here insisting that in so doing the district judge erred.
We do not think SQ_ 0n the contrary> we are of the clear opinion that upon the facts agreed to and under the authority of the controlling cases, the record wholly fails to support appellants’ contention that under the provisions of Sec. 802 (r) the policy was automatically kept in force. We are, therefore, of the further opinion that the failure of the principal beneficiary to apply for waiver of premiums and her failure to make a timely claim and to bring suit within the time limited in 38 U.S.C.A. § 445, prevents the bringing and maintenance of this suit.
The judgment is affirmed.
. 38 U.S.C.A. § 802(r): “In any case in which premiums are not waived under subsection (n) of this section solely because the insured died prior to the continuance of total disability for six months, and proof of such facts, satisfactory to the Administrator of Veterans’ Affairs, is filed by the beneficiary with the Veterans’ Administration within one year after September 30, 1944, or one year after the insured’s death, whichever is the later date, his insurance shall be deemed to be in force at the date of his death, and the unpaid premiums shall become a lien against the proceeds of his insurance: Provided, That if the beneficiary be insane or a minor, proof of such facts may be filed within one year after removal of such legal disability.”
. “ * * * no suit on United States Government life (converted) insurance shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made: Provided, That for the purposes of this section it shall be deemed that the right accrued on the happening of the contingency on which the claim is founded: Provided further, That this limitation is suspended for the period elapsing between the filing in the Veterans’ Administration of the claim sued upon and the denial of said claim by the Administrator of Veterans’ Affairs. Infants, insane persons, or persons under other legal disability, or persons rated as incompetent or insane by the Veterans’ Administration shall have three years in which to bring suit after the removal of their disabilities. * * * ”
. 1. The United States of America issued National Service Life Insurance Policy, Policy No. N-15-931-199 in the amount of $10,000.00 to Harvey O. Lewis, husband of Juanita Gibson Lewis and father of Connie Nell Lewis.
2. Said policy was issued on the 24th day of March, 1944.
3. Said policy was payable in event of the insured’s death to Mrs. Juanita Gibson Lewis.
4. Connie Nell Lewis was the contingent beneficiary named under said policy.
5. The insured died on June 11, 1945, as a result of a self-inflicted gun shot wound.
6. The premiums on the policy were paid through January 23, 1945.
7. The insured was totally disabled from February 23, 1945 to June 11, 1945, and such total disability was a service connected one and was so ascertained by the defendant’s pension board on August 2, 1951.
8. A National Service Life Insurance Policy does not lapse for non-payment of premiums due until after the expiration of thirty-one days from the date the premium was due.
9. The insured was discharged from active military service Dec. 7, 1944, on account of dependency; the discharge papers reflect no indication of the existence of any disability.
10. At no time during the insured’s lifetime did he file a claim for waiver of premiums.
11. The Veterans’ Administration received inquiry from Juanita Lewis Gibson, plaintiff-appellant dated July 8, 1945, regarding National Service Life Insurance Policy No. N-15-931-199 a copy of which letter is attached hereto and entitled “Exhibit A”, and in response to said letter the Veterans’ Administration advised the said plaintiff-appellant that the said premiums on said policy were paid through January 23, 1945, but that the insurance lapsed for non-payment of premiums thereafter.
12. Connie Nell Lewis, plaintiff-appellant was born May 16, 1934.
13. On August 5,1945, the said Juanita Gibson Lewis filed a claim for a death pension, which was denied May 21, 1946, and the answer to a specific question on the form submitted by her at that time contained a statement that she was not filing and had not filed a claim for government insurance.
14. Juanita Gibson Lewis filed claim for burial allowance which was subsequently denied on August 13, 1947.
15. On August 13,1951, the said Juanita Gibson Lewis, for and on behalf of the minor contingent beneficiary, Connie Nell Lewis, filed a claim for total disability and benefits under the National Service Life Insurance Act on Veterans' Administration form 9-357c, Policy No. N-15-931-199.
16. Administrator’s decision, Veterans’ Administration No. 916, dated Sept. 29, 1952, denied the claim for insurance filed on Form 9-357c dated Aug. 13, 1951, by Juanita Gibson Lewis for and on behalf of Connie Nell Lewis, then a minor.
17. Juanita Lewis was under the age of 35 years at the time of the death of the insured.
. Cain v. United States, D.C., 116 F.Supp. 150; Fox v. United States, 5 Cir., 201 F.2d 883; Scott v. United States, 5 Cir., 189 F.2d 863, certiorari denied 342 U.S. 878, 72 S.Ct. 169, 96 L.Ed. 660; Stephens v. United States, D.C., 85 F. Supp. 620; United States v. Cooper, 200 F.2d 954; United States v. Roberts, 5 Cir., 192 F.2d 893.
. Cf. U. S. v. Barker, 5 Cir., 70 F.2d 1002; McDonald v. Hovey, 110 U.S. 619, 4 S.Ct. 142, 28 L.Ed. 269; De Arnaud v. United States, 151 U.S. 483, 14 S. Ct. 374, 38 L.Ed. 244; Winslow v. United States, 79 U.S.App.D.C. 366, 147 F.2d 157; Dowell v. United States, 5 Cir., 86 F.2d 120.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_direct1 | C | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for assertion of federal power in federalism cases; "not ascertained" for conflict between states; for attorney; for the validity of challenged selective service regulation; or for the government interest in dispute with someone attempting to resist induction; for the authority of the challenged official in challenge to magistrates or referees; for defendant in Indian law - criminal; for the claim of the Indian or tribal rights in Indian law; for federal or state authority in Indian law vs state and federal authority; for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business in international law; for government regulation in immigration Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
HAMAKER v. HEFFRON (two cases).
No. 10856.
Circuit Court of Appeals, Ninth Circuit.
Feb. 28, 1945.
Rehearing Denied May 29, 1945.
Frank H. Love, of Los Angeles, Cal. (A. L. Abrahams, of Los Angeles, Cal., of counsel), for appellants.
Thomas S. Tobin, of Los Angeles, Cal., and George A. Hart, of Long Beach, Cal., for appellee.
Before MATHEWS, HEALY, and BONE, Circuit Judges.
BONE, Circuit Judge.
This controversy arises in bankruptcy proceedings pending in the District Court for the Southern District of California, Central Division.
Voluntary petitions in bankruptcy were filed at different times by appellants, William Nelson Hamaker and Orelia B. Ha-maker, his wife, in the District Court, the matters were referred to referees and the appellants were adjudicated bankrupts. An order discharging William Nelson Hamaker was made on November 12, 1936; Orelia B. Hamaker was discharged on February 8, 1940.
On October 28, 1943, upon petition of the Bank of America, a creditor, the estate of Orelia B. Hamaker (hereinafter referred to as the wife) was reopened and referred to a referee. Proceedings were had, a meeting of creditors held, and William I. Heffron (hereinafter referred to as the trustee) was elected trustee in said reopened estate. On November 4, 1943, a like petition was filed by said bank and like proceedings were had in the estate of William Nelson Hamaker (hereinafter referred to as the husband), a meeting of creditors held, and William I. Heffron elected trustee. The trustee filed a petition in the wife’s estate asking that an order issue requiring the bankrupt to convey certain property to the trustee. Upon the petition an order to show cause against the wife was made and served. Upon a like petition, a like order was made against the bankrupt husband. Upon a hearing on these orders to show cause (consolidated by agreement and order), the referee made findings of fact, conclusions of law and a turnover order requiring the bankrupts to execute conveyances of certain property described in the aforesaid petitions. That is, the wife was ordered to turn over certain real property held by her in Nebraska and in Fresno County, California. The husband was ordered to turn over certain painting and statuary.
Within the time provided by law the bankrupts filed their petition for review of the referee’s order by the District Court. The petition was granted, the matter argued before the court, and the referee’s decision was affirmed. Bankrupts appeal.
The facts of the case.appear to be these: The two bankrupts married in 1915 and ever since have been husband and wife and residents of California. Prior to the year 1933 the wife was the owner of a one-fourth interest in certain real property situated in the City of York, County of York, State of Nebraska. She acquired this property as a gift from her father. On March 30, 1933, the wife deeded this Nebraska property to her brother, John I. Boyer in part payment of a debt the bankrupts claimed they owed the brother. Pri- or to 193-1 the wife acquired as her separate property a three-fifths interest in certain oil land in Fresno County, California. The record is not clear as to how she acquired the property but it appears to have been given to her by her husband in the year 1927 or before. On February 6, 1934, this property was also transferred to John I. Boyer. The deed to the Nebraska property was recorded in the county recorder’s office in York County, Nebraska, October 27, 1934. The deed to the Fresno County property was recorded during the year 1934.
At the time of the marriage the husband was the owner of some oil paintings and statuary located in the rooms of the Los Angeles Athletic Club. The bankrupts claimed that the husband gave these objects of art to the wife as a wedding present. There was no change of possession and nothing done so far as the physical situation was concerned to indicate the transfer, nor was the Los Angeles Athletic Club notified that the wife was the new owner. In 1936 after the husband was discharged in bankruptcy the wife made a gift of these pictures to him through an executed bill of sale.
On November 8, 1927, the husband and wife executed and delivered to the Bank of Italy (now Bank of America) a promissory note in the sum of $12,500. The note was secured by a deed of trust. The amount of the claim which it appears from the record was the only claim filed in the wife’s bankrupt estate was a deficiency judgment arising out of a suit upon this promissory note for $12,500, after the foreclosure of the trust deed. The claim was represented by a judgment in favor of A. G. Brown, assignee of the bank, which showed that the judgment was rendered July 22, 1936, for $7,918.49 and $307.55 attorney’s fees. The claim in the husband’s estate was for the deficiency, and no judgment was taken therefor against him because of his pending bankruptcy proceedings.
The testimony in this case shows that the wife never disclosed to her trustee, the referee, nor to anyone that she had at one time been the owner of the Nebraska or Fresno property. Also the testimony shows that the husband never mentioned to his trustee nor to anyone anything concerning the paintings and statuary in the Club, nor that he had, or ever had, any interest in oil property in Fresno County.
The record discloses that on February 13, 1940, the said John I. Boyer executed and delivered to the wife a deed for a one-fourth interest in the Nebraska property. This deed was recorded February 16, 1943. On February 20, 1940, said John I. Boyer gave written instructions to the First Trust Co. of York, Nebraska to pay all future income from this one-fourth interest iti the property to the wife. The Trust Co. was operating the property for the owners. On August 6, 1942, Boyer transferred to the wife the ihrce-fifths interest in the Fresno property. Boyer died on February 21, 1943.
The principal questions on appeal narrow themselves down to these three: (1) Did the wife’s signature upon the note and deed of trust give the bank a right against her separate property in 1933 and 1934 so that her conveyance to her brother, John I. Boyer in those years might be termed fraudulent as against her creditors; (2) if that question is answered in the negative, then would the 1936 judgment entered against the wife alone, and constituting the claim against the wife’s estate in this proceeding, give the trustee any claim to separate property which the wife had previously transferred; (3) do the creditors have, any right to the objects of art in the Los Angeles Athletic Club?
1. Under the Bankruptcy Act, subdivisions a (4) and e of § 70, 11 U.S. C.A. § 110, the trustee is vested at the time of bankruptcy with the right and title of the bankrupt as of the date of filing the petition in bankruptcy to all property transferred by the bankrupt in fraud of creditors, and any transfer by the bankrupt which under any State or Federal law applicable would be fraudulent as against any creditor of the bankrupt shall be null and void as against the trustee of the bankrupt.
The contention of the trustee is that the bankrupts and John I. Boyer arranged the conveyances of the property in question with the intent to defraud creditors. In order to determine whether a fraudulent transfer was consummated, we must decide whether the bank was ever a creditor of the wife. Thus the question presents itself as to the liability of the wife’s separate property when she signs her name to a note and deed of trust securing a debt of the husband or of the community.
Prior to the enactment of § 171b of the Civil Code of California in 1937, the liability of the wife’s separate property under these circumstances appears to be uncertain. But the question as far as the present case is concerned has been answered by the California court by applying a rule of contract law.
In this regard the circumstances surrounding the signing of the note are important. In his testimony the husband explained the obligation in these words:
“The note dated November 8, 1927, for $12,500, I gave to the Bank of America. I did not receive cash for it. At that time I was criticized for making loans aggregating $12,500 and I gave my note secured by trust deed on the home which was occupied by myself and wife to secure the note.”
It thus appears that this was a note and trust deed to cover an antecedent debt of the husband or at most of the community incurred by the husband. Under these circumstances, and since the rights of the parties are determined by applicable state law, the case of Chaffee v. Browne, 109 Cal. 211, 41 P. 1028, 1031, seems controlling. In that case the husband maintained an account with a general store where husband and wife bought goods for the family. The account finally grew to around $1,400 at which time the husband and wife jointly signed a mortgage to secure the debt. The wife specifically stated therein that she wished such mortgage to be a lien upon certain property she was to receive from her father’s estate then in probate. The mortgagees sued to foreclose the mortgage on such separate property of the wife. The court held that this was a debt for which the husband was personally liable but for which the wife assumed no personal liability until she signed the mortgage. Thus the Court said: “It follows that in the execution of this mortgage the defendant [wife] undertook to assume and secure her husband’s antecedent debt. ‘No new consideration was given at the time it was executed. The wife received nothing. The husband received nothing. The creditor parted with nothing. The instrument was therefore no more than a collateral security given for an old debt of the husband’ (Bayler v. Commonwealth, 40 Pa. 37 [80 Am.Dec. 551]), and was not obligatory in the absence of new consideration (Civ.Code, §§ 2792, 2823, 2844; Bohne v. Hoffer, 2 Colo.App. 146, 29 P. 905.)” Although certain-sections ox the Civil Code have been amended since the time of Chaffee v. Browne, these amendments have not changed the rule in that case. See Medical Finance Ass’n v Allum, 1937, 22 Cal.App.2d Supp. 747, 66 P.2d 761; Royer v. Kelly, 1916, 174 Cal. 74, 161 P. 1148.
The situation in this case and that in the Chaffee case seem analogous. Here the husband and wife merely signed a note and deed of trust to secure an antecedent obligation (or what looked as if it might turn out to be an antecedent obligation) of the husband, or at most of the community. Neither party received any consideration for the note. The bank gave up nothing. Therefore, it appears that at the time of the transfers in 1933 and 1934 the separate property of the wife could not be subjected to this note and deed of trust, even assuming that in other cases the separate property of the wife may be subjected to liability for her signature on the note. See Citizens Nat. Bank v. Turner, 5 Cir., 89 F.2d 600.
2. In regard to the second question, that is the effect of the 1936 judgment, the rule in California is that where a judgment making the wife personally liable is made final, the judgment creditor can levy upon the wife’s separate property even though the debt which gave rise to the judgment was a debt of the community and not of the wife separately. See Kirkpatrick v. Harvey, 51 Cal.App.2d 170, 124 P.2d 367. In other words, the wife must show in the original proceeding that the creditor has no right to reach her separate property. After a judgment is entered making her personally liable upon its face she cannot collaterally attack that judgment by showing that in fact it was a community debt, and that her separate property should not be held. She has in effect waived such a defense.
Such a rule of law, however, is of no avail to the trustee in this case. Under §§ 70, sub. a and 70, sub. e, of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. a and sub. e, the trustee has at the time of bankruptcy the right and title to property transferred by the bankrupt in fraud of creditors if such transfers are fraudulent under any State or Federal act applicable. Here the Nebraska property was transferred to Boyer in 1933 and the Fresno property in 1934. The judgment was taken against the wife in 1936. There is nothing in the record to controvert the wife’s statement that both of these pieces of property are her separate property. As we have found that prior to the 1936 judgment the wife’s separate property was not liable to the bank’s claim, then it must follow that the wife’s transfers were not fraudulent as to the bank because at that time the wife ■could not have intended to defraud the bank as a creditor since the bank was not her creditor. Citizens Bank v. Turner, supra. When the wife allowed judgment to be entered against her in 1936 she merely waived any right she might have had to exclude her separate property that she then owned; not property she previously owned. Cf. 4 Remington on Bankruptcy, §§ 1590, 1591, 5th ed., 1943.
Therefore, we find that since the wife’s property was her separate property and was not at the time of the 1933 and 1934 transfers property which the creditor bank could have reached, the judgment of the district court as to this property is reversed.
3. The third question deals with the rights of the trustees to the oil paintings and statuary situated in the Los Angeles Athletic Club. The referee found that the statuary and paintings constituted property belonging to the estate of the husband which was transferred by him in fraud of his creditors. Therefore title to the property was held to be vested in the trustee. The trustee has sold the property and impounded the proceeds of the sale.
The bankrupts claim that the paintings were given by the husband to the wife the day of their marriage in 1915. There was no delivery of them. They were left at the Club. There is also evidence of the fact that after the husband went through bankruptcy, the wife transferred the paintings to the husband in 1936. Neither husband nor wife listed the paintings or the statuary in their schedules.
Appellants claim that such pictures are exempt because they are “hanging pictures” and thus come under the exemptions listed in § 690.2 of the Code of Civil Procedure of California. But upon a full reading of the section it does not appear that the “hanging pictures” mentioned in the statute were meant to cover the paintings of the character here in question. There is no evidence that these oil paintings were either family portraits or that they were drawn or painted by any member of the family. Furthermore, this section of the code does not cover the statuary.
We find no merit to the appellant’s claim of error in regard to the paintings and statuary. The finding of the referee and the judgment of the District Court as to this portion of the proceeding are affirmed.
The views herein expressed make it unnecessary to discuss certain other questions suggested in appellant’s brief.
The judgment of the District Court requiring the wife to turn over the Nebraska property and the Fresno County property is reversed. The judgment of the District Court requiring the husband to turn over the paintings and statuary in the Los Angeles Athletic Club, or the proceeds thereof, is affirmed.
For applicable statute before 3939 see Civil Code of California, § 3439; for statute after 1939 see Code, § 3439.07.
See 26 Calif.Law Rev. 329.
Although this rule of law would cover any separate property that the wife owned, it should also be noted that as to the Nebraska property, the Nebraska law would govern whether or not that real property passed to the trustee. Spindle v. Shreve, 111 U.S. 542, 4 S.Ct. 522, 28 L.Ed. 512; Suskin & Berry v. Rumley, 4 Cir., 37 F.2d 304, 68 A.L.R. 768; In re Martin, 6 Cir., 47 F.2d 498. The rule in Nebraska is that the signing of á promissory note by a married woman does not render her separate property liable for its payment “unless the plaintiff shall establish by a preponderance of the evidence that the note was made with reference to or upon the faith and credit of the wife’s separate estate or business, and with an intention on her part that her separate property shall be bound for its payment.” State Nat. Bank v. Smith, 55 Neb. 54, 75 N.W. 51. See also Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82.
§ 690.2 as far as appropriate to our discussion roads:
“Necessary household, table, and kitchen furniture belonging to the judgment debtor, including one refrigerator, washing machine, sewing machine, stove, stove-pipes and furniture; wearing apparel, beds, bedding and bedsteads, banging pictures, oil paintings and drawings drawn or painted by any member of the family, and family portraits and their necessary frames * * * ” See Bankruptcy Act, § 6, 11 U.S.C.A. § 24.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_two_issues | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
JACK’S COOKIE COMPANY, Appellant and Cross-Appellee, v. A. A. BROOKS, Appellee and Cross-Appellant.
No. 7060.
United States Court of Appeals Fourth Circuit.
Argued Oct. 18, 1955.
Decided Dec. 8, 1955.
See also D.C., 122 F.Supp. 113.
W. Pinkney Herbert, Jr., Charlotte, N. C., R. B. Herbert, Jr., Columbia, S. C., and James O. Moore, Charlotte, N. C. (Herbert & Dial, Columbia, S. C., and Lassiter, Moore & Van Allen, Charlotte, N. C., on the brief), for Jack’s Cookie Co.
Fred F. Cunningham and Edward M. Woodward, Columbia, S. C. (Edens & Woodward and Cunningham & Brandon, Columbia, S. C., on the brief), for A. A. Brooks.
Before SOPER and DOBIE, Circuit Judges, and BRYAN, District Judge.
SOPER, Circuit Judge.
This suit grows out of the termination of an agency contract between Jack’s Cookie Company, a North Carolina corporation, and A. A. Brooks, a citizen of South Carolina who was engaged in the business of selling and distributing the products of divers manufacturers in South Carolina and neighboring states. Jack’s terminated the contract after it had been in operation for about nineteen months and notified the trade.by circular letter that Brooks was no longer its sales representative. Thereupon Brooks sued Jack’s claiming damages for breach of contract and unjust enrichment, and also claiming actual and punitive damages 'for libel on the ground that certain statements in the circular letter imputed to' him a lack of business capacity and insinuated that he had been discharged for ■ dishonesty or misconduct. At the conclusion of the plaintiff’s case the District Judge, on motion of the defendant, dismissed the claims of breach of contract and unjust enrichment on the grounds that the arrangement between the parties lacked mutuality and was indefinite in duration and terminable at the will of either party.
The case proceeded on the claim of libel and was submitted to the jury at the close of all the evidence on the issue of actual damages, the. right to punitive damages being refused. The jury found for the plaintiff on this cause of action in the sum of $17,500, and both parties have appealed.
Jack’s had been in the business of manufacturing cookies in Charlotte, North Carolina, since 1947, but had not been very successful and in consequence it was reorganized in 1950 and a new management was installed under a new president, John Barton, who set about changing the methods of operation. The company had previously distributed its product in its own trucks on certain routes in and around Charlotte, and Barton decided to sell to independent distributors rather than from his own trucks in introducing the product in new territory. Brooks had had experience as a manufacturer’s representative in handling diversified lines oí goods which he sold to wholesalers and distributors. He was on the lookout for new accounts and one of his circulars fell into Barton’s hands and led to a meeting between the men and the formation of an oral contract.
It was agreed that Brooks was to set up a sales organization for the sale of .Jack’s product by wholesale distributors in Virginia and West Virginia, and also in the Carolinas, with the exception of certain cities in the latter states. He agreed to produce a reasonable amount of business and to pay his own expenses and he was to receive as compensation a commission of five per cent on gross sales after a deduction of five per cent for freight charges'. He was to have the position so long as he did a good job, but he was free to stop work for Jack’s at any time. There is no dispute that these terms formed part of the contract, but as to another element the testimony was in conflict. On behalf of Jack’s it was testified that Brooks was not to take on any additional lines of merchandise; but Brooks denied that he made any such agreement.
Entering upon his duties on or about January 1, 1952, Brooks visited jobbers to whom he was already selling other merchandise and divided the territory amongst them giving them exclusive areas for the sale of Jack’s cookies upon their agreement that they would not handle competing goods. He had one salesman working for him at the time, but employed additional men to assist him in the work, and paid them four-fifths of his commissions. His efforts were successful and sales were greatly increased in the territory assigned him, so that by September, 1953 the gross sales had risen from approximately $1500 to approximately $50,000 per month, and his net return amounted to $1,000 per month for a number of months in 1953. Upon his advice Jack’s increased the minimum purchase by the distributors from $50 to $200, and he selected new distributors in certain localities in place of old ones appointed by Jack’s who had proved unsatisfactory. In April, 1953, after he found the line profitable, he asked for a written contract which he had previously refused to sign, but the company declined.
Dissatisfaction arose in certain particulars. Brooks did not keep any record of his sales or of his employees, and he did not make it clear to them that they were his employees and not Jack’s, and in some instances the salesmen called on Jack’s for services which Brooks should have given. Barton was obliged to call a meeting of salesmen in Charlotte in order to instruct the salesmen on this point. Barton instructed Brooks to open an office in Columbia as headquarters for Brooks’ operations and in January Brooks rented an office and engaged a secretary, but it was not opened until July and then it proved to be the headquarters of an employment agency operated by his wife and his secretary. Brooks hired and fired a large number of salesmen during the period and he had only two salesmen at work in September, 1953.
In April, 1953, in order to increase sales and instruct the retailers as to the distribution of the product, it was agreed that one Henry Hall, an experienced man, should be employed to go out with the salesmen on their routes in order to demonstrate how to display the goods, and he was paid for these services by Jack’s for seventy-five days, and thereafter one-half of his salary was paid by each of the parties.
While working for Jack’s Brooks took on several new lines for distribution, contrary to his agreement with Jack’s, if the testimony of Barton is accepted.
On September 1, 1953 Brooks was called into Jack’s office and discharged. He was paid in full for goods sold up to that date. Henry Hall, as an employee of Jack’s, was put in charge of the distribution of the merchandise on a salary basis.
On or about September 3, 1953 Barton sent out to the trade a letter announcing that Brooks had ceased to be Jack’s representative in the following terms:
“This is to notify you that effective September 1, 1953, Mr. A. A. Brooks and his organization are no longer the sales representatives of Jack’s Cookie Company, Charlotte, N. C.
“We are sorry that situations of this nature have to arise, but we have no hesitancy in doing that which in our judgment is best for the company, its distributors, representatives and customers. You will be contacted as soon as possible by an official representative of this company. It is our sincere desire to serve you in an efficient manner with quality products of which you can be proud. Your business is greatly appreciated and we will do everything in our power to continue to be worthy of it.
“Should there be any questions whatsoever concerning this situation, please do not hesitate to call Mr. Howard Walters at 3-9033, Charlotte, N. C.”
We think it was error to submit the libel charge to the jury because the letter does not convey a defamatory meaning. At the worst it meant nothing more than that Jack’s believed it better for the business to select a new sales agent, and the statement that it was best for the company, its distributors and customers to make the change, could not fairly be interpreted as charging Brooks either with incompetency or dishonesty. Any unexplained severance of the relationship of employer and employee gives rise to speculations as to the reasons for, it in the minds of interested persons, but something more than mere speculation is required to form the basis of a charge of libel or slander. In Phillips v. Union Indemnity Co., 4 Cir., 28 F.2d 701, we had occasion to consider a case from South Carolina in which it was charged that the cancellation of an agency by an insurance company reflected upon the character of the agents under the circumstances in which it occurred. We sustained a demurrer to the complaint saying, at pages 702, 703:
“It is familiar law that while the office of the innuendo is to connect the defamatory matter with the other facts set out, so as to show the meaning and application of the charge, it cannot enlarge or restrict the natural meaning of the words, or introduce new matter. It cannot be used to give a forced and unnatural construction and application of the words, but only a reasonable and natural construction and application. * * * since the injurious character of the publication and the harm done to the plaintiff depends upon the manner in which the writing is understood by those to whom it is uttered, it must be read and construed in the sense in which the reader would ordinarily understand it; and if, when thus considered, it cannot reasonably be interpreted as defamatory, it will not serve as a basis for the action.
“ * * * But neither in a libel case, nor in any other, may a jury be permitted to indulge in mere speculation, unaided by facts, to determine which of several causes may have produced an event. No facts are alleged which tend to show that there was friction between the parties to the cause, or that the most evil of all possible meanings was intended by the defendant.”
This is also the rule of the South Carolina courts by whose decisions we are governed in this case. See particularly, Hubbard v. Furman University, 76 S.C. 510, 57 S.E. 478, where, upon the resignation of a teacher, the school sent out a notice to its patrons in which it was said that the change was made for the good of the department and in the interest of the patrons, and the court held that the statement was not libelous and would not ordinarily be understood as implying a charge of incompetency or lack of character. See also Hospital Care Corp. v. Commercial Casualty Insurance Co., 194 S.C. 370, 9 S.E.2d 796; cf. Duncan v. Record Publishing Co., 145 S.C. 196, 143 S.E. 31.
Our conclusion is not changed by the testimony of three recipients of the letter who were allowed to testify that the impression made upon them by it was that Brooks had done something wrong or out of the way which led to the discontinuance of the agency, although it did not cause them to lose confidence in him. The decision must rest upon the ordinary meaning of the words and not upon the mere speculation of the recipients of the letter. The case is not one in which it is proper to consider the effect upon the minds of the hearers of words which were ambiguous in the context of the circumstances under which they were spoken. See Jenkins v. Southern Ry. Co., 130 S.C. 180, 125 S.E. 912.
We think, however, that the case should have been submitted to the jury on the issue of breach of contract, because in our opinion the evidence, taken in the light most favorable to the agent, indicated something more than a contract in which the agent is appointed merely to sell the goods of a manufacturer on commission, and there is no promise on either side to continue the relationship for a definite period. In such event each sale constitutes the acceptance of an offer in a series of independent transactions and the manufacturer fulfills his agreement by paying the stipulated commission and is ordinarily at liberty to terminate the arrangement at will without breach of contract. See Willcox & Gibbs Sewing-Machine Co. v. Ewing, 141 U.S. 627, 12 S.Ct. 94, 35 L.Ed. 882; Motor Car Supply Co. v. General Household Utilities Co., 4 Cir., 80 F.2d 167; E. I. DuPont de Nemours & Co. v. Claiborne-Reno, 8 Cir., 64 F.2d 224, 89 A.L.R. 238; Curtis Candy Co. v. Silberman, 6 Cir., 45 F.2d 451; Terre Haute Brewing Co. v. Dugan, 8 Cir., 102 F.2d 425; Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499.
On the other hand, if the manufacturer appoints an agent not merely to sell the goods, but the agent in addition to making sales furnishes additional 'consideration, as when he sets up a distributive system for the manufacturer's goods and his compensation is measured by the amount of goods sold in the territory assigned to him, the manufacturer is not at liberty to terminate the agreement at will even though it contains no provision for its termination, but must retain the agent in the employment for a reasonable period of time. Williston on Contracts, § 1027(a), p. 2852; Joy v. City of St. Louis, 138 U.S. 1, 50, 11 S.Ct. 243, 34 L.Ed. 843; Restatement of Agency, § 442 Comment C; Kelly-Springfield Tire Co. v. Bobo, 9 Cir., 4 F.2d 71; Bassick Mfg. Co. v. Riley, D.C.E.D.Pa., 9 F.2d 138; J. C. Millett Co. v. Park & Tilford Distillers Corp., D.C.N.D.Cal.S.D., 123 F. Supp. 484; Shealy v. Fowler, 182 S.C. 81, 188 S.E. 499.
There is evidence in this case which tends to show that Brooks’ employment falls into the latter category, and hence the question should have been submitted to the determination of the jury; and if they should so find, they should go further and determine the additional question whether the agent was permitted to retain the agency for a reasonable time, and if not, to ascertain the damages, if any, which he suffered thereby.
However, the jury should be instructed first to consider whether Brooks kept the promises which he made. This issue involves in the first place a determination of the disputed question whether Brooks promised, when he assumed the agency, not to take on any new lines additional to Jack’s, and if they find that he made this promise, and violated it, they should be instructed to find a verdict for the defendant.
In addition the jury should determine whether Brooks faithfully and efficiently carried out his part of the business. In this connection the jury should be instructed to consider the evidence tending to show the character of the salesmen selected by him, the frequent changes of personnel, his failure to render them the necessary services and to instruct them that they were his employees and not the employees of Jack’s; and also the failure of Brooks to set up a headquarters’ office for his agency. If the jury should find from a consideration of this evidence relating to these matters that Jack’s had reasonable ground to terminate the agency, the verdict of the jury should be in its favor.
It is not our intention to express any opinion on these controverted questions or to limit the jury to the consideration of the circumstances referred to above, but rather to outline the course to be followed upon the remand of the case, leaving to the District Judge to determine the bearing of the evidence, as it will be developed at the new trial upon the crucial issues in the case.
Reversed and remanded for new trial in accordance with the views expressed in this opinion.
. There is no legal basis for the separate claim of the appellee for unjust enrichment.
Question: Are there two issues in the case?
A. no
B. yes
Answer: |
songer_appel1_7_5 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
COMMISSIONERS COURT OF MEDINA COUNTY, TEXAS, et al. v. UNITED STATES of America, et al. Antonio Garcia, III, et al., Appellants.
No. 81-1495.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 13, 1982.
Decided July 2, 1982.
Jose Garza, San Antonio, Tex., with whom William L. Robinson, Norman J. Chachkin, Washington, D. C.,'and Rolando L. Rios, San Antonio, Tex., were on the brief, for appellants.
Keith A. Rosenberg, Washington, D. C., for appellees Commissioners of Medina County, Tex., et al.
Walter W. Barnett, Atty., U. S. Dept, of Justice, Washington, D. C., entered an appearance for appellees United States of America, et al.
Before BAZELON, Senior Circuit Judge, and WRIGHT and TAMM, Circuit Judges.
Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
The question presented in this case is whether parties who intervene as defendants in a declaratory judgment action are “prevailing parties” eligible for attorneys’ fees when the case becomes moot. The district court found that defendant-intervenors were not, on the facts of this case, “prevailing parties.” Because we believe that the district court gave determinative weight to an improper factor, we vacate its order and remand for reconsideration.
I.
Under the Voting Rights Act of 1965, as amended (the Act), 42 U.S.C. § 1973 et seq. (1976 & Supp. Ill 1979), certain jurisdictions must seek from the Attorney General or the United States District Court for the District of Columbia preclearance of any “standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964... . ” Id. at § 1973c. Preclearance approval entails a finding, either affirmatively or because the Attorney General interposes no objection, that the standard, practice, or procedure “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or [because of membership in a language minority].” Id. Failure to obtain preclearance approval prior to implementation of any such standard, practice, or procedure is a violation of the Act.
On January 25, 1980, the Commissioners of Medina County, Texas (the County), instituted a declaratory judgment action against the United States pursuant to section 5 of the Act, 42 U.S.C. § 1973c. The relief sought was a declaration that two redistricting plans (the 1978 and 1979 Plans), which had failed to obtain preclearance from the Attorney General, were not adopted in furtherance of a discriminatory purpose and would not, in effect, discriminate on the basis of race, color, or other improper criteria.
Appellants Antonio Garcia, III, Jesus Rodriguez, and Lucio Torres, Mexican-American citizens residing and registered to vote in Medina County, intervened as party defendants in the County’s suit against the United States. In late 1980, during the pendency of the suit, the County submitted yet another plan (the 1980 Plan) to the Attorney General. The 1980 Plan received preclearance approval on December 16, 1980. Upon notification of the preclearance, the district court dismissed the declaratory judgment suit as moot. Commissioners of Medina County, Texas v. United States, Civ. No. 80-0241 (D.D.C. Dec. 18, 1980).
Thereafter, Garcia filed a motion for attorneys’ fees. Under the Act fees may be awarded, in the discretion of the court, to a “prevailing party.” To satisfy this threshold eligibility requirement, Garcia argued:
The result of the litigation was that the [1978 and 1979] reapportionment plans ... were never precleared and a third plan, more favorable to defendant-intervenors, was finally adopted by Medina County. Moreover, the plan adopted by Medina County was very similar to the plan advocated by defendant-intervenors.
The County countered this claim by arguing as follows:
The Intervenors’ proposed plan was rejected by both the United States and Medina County as not being supported by competent statistical data and being too broad a change from prior plans. The 1980 Plan was a compromise between the 1979 Plan ... and one proposed by the government. Intervenors’ Plan was substantially different from either of the principal parties’ proposed plans and played no part in the compromise process. It is unfair and contrary to the spirit of 42 U.S.C.A. § 1988 (Supp.1980) [sic] to award attorney [sic] fees to Intervenors that entered into the lawsuit on their own motion, that opposed the resolution of the matter that was accomplished by the Plaintiffs and Defendant . .., and [that] completely failed in obtaining the adoption of any part of their proposed plan.
On March 10,1981, the district court denied, without opinion, the request for fees. Appellants sought reconsideration and, on April 1, 1981, the motion was again denied with the following notation:
Denied. Defendant-Intervenors did not prevail in this litigation. In fact they opposed the compromise settlement between plaintiffs and the U. S. which was the basis for dismissing the present litigation.
Commissioners of Medina County, Texas v. United States, Civ. No. 80-0241 (D.D.C. Apr. 1, 1981) (order denying attorneys’ fees).
On appeal, defendant-intervenors claim that the district court erred in two respects. First, they contend that the district court’s failure to enter formal findings of fact and conclusions of law is reversible error. Second, they argue that the district court’s determination that they were not prevailing parties is clearly erroneous. We address these contentions in turn.
II.
Appellants contend that the district court’s denial of attorneys’ fees without formal findings of fact and conclusions of law is plain error. We note that this area is not without controversy. See Consolidated Freightways Corp. v. Kassel, - U.S. -, 102 S.Ct. 1496, 71 L.Ed.2d 187 (1982) (cert. dismissed as improvidently granted) (White, J., dissenting). This Court has previously held that when attorneys’ fees are awarded, district courts must “adequately articulat[e the] underlying reasons” for the award. Copeland v. Marshall, 641 F.2d 880, 901 n.39 (D.C.Cir.1980) (en banc). It would thus seem anomalous to find that a court completely denying fees need not state any reasons.
We need not travel far into this particular thicket because the district court in this case made a finding on the one fact — whether defendant-intervenors were prevailing parties — that is dispositive of any attorneys’ fees motion at this early stage of a fees proceeding. Although it cannot be gainsaid that the district court could have expounded further upon its reasoning, we believe that the terse statement rendered in response to the motion for reconsideration provides sufficient insight into the court’s rationale to meet any requirement there may be that the underlying reasons be adequately articulated. Accordingly, we reject Garcia’s “plain error” argument and turn to the merits of the claim that the district court erred in failing to find appellants “prevailing parties.”
III.
Generally, a defendant may not recover attorneys’ fees unless the court finds that the plaintiff’s suit was frivolous, vexatious, or without foundation. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). There are, however, situations where the procedural posture of a particular case renders the general rule inapplicable. In Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978), for example, fee claimants intervened as defendants in a reverse discrimination suit challenging an affirmative action program instituted pursuant to a consent decree obtained by the fee claimants in a prior civil rights action. Although the intervening defendants in Prate were awarded fees based upon a finding that plaintiffs’ suit was unreasonable and vexatious, the court noted that the argument that the equities underlying defendant-intervenors’ request for fees were “little different from those associated with the typical successful minority-group plaintiff” was “not without force.” Id. at 46 & n.2. Similarly, in Baker v. City of Detroit, 504 F.Supp. 841 (E.D.Mich.1980), another challenge to an affirmative action plan, defendant-intervenors were awarded fees. The court there noted that the attorneys’ fees statute “is to be liberally construed to effectuate its purposes.... The procedural posture of the case should not be dispositive.” Id. at 850 (citations omitted).
Moreover, the legislative history of the attorneys’ fees provision of the Act expressly recognizes that fees may be awarded in the situation with which we are confronted:
In the large majority of cases the party or parties seeking to enforce such rights will be the plaintiffs and/or plaintiff-intervenors. However, in the procedural posture of some cases (e.g. declaratory judgment suit under Sec. 5 of the Voting Rights Act) the parties seeking to enforce such rights may be the defendants and/or defendant-intervenors.
S.Rep.No.295, 94th Cong., 1st Sess. 40 n.42 (1974), U.S.Code Cong. & Admin.News 1975, p. 807. It is thus clear from the case law and the legislative history that when the procedural posture of a case places the party who seeks to vindicate rights guaranteed by the Constitution in the position of defendant, the restrictive Christiansburg Garment rule is not applicable. Accordingly, neither appellants’ status as intervenors nor as defendants precludes an award of fees under the Voting Rights Act.
IV.
It is now well settled that a suit need not proceed to final judgment on the merits in order for a party to “prevail.” See Maher v. Gagne, 448 U.S. 122, 129-30, 100 S.Ct. 2570, 2574-2575, 65 L.Ed.2d 653 (1980). The legislative history of the Voting Rights Act notes that “for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief.” S.Rep. No.295, 94th Cong., 1st Sess. 41 (1974), U.S. Code Cong. & Admin.News 1975, p. 808. In addition, it is not necessary that there be a consent judgment or a negotiated settlement. A party may be considered to have prevailed “when remedial action by [the other party] effectively moots the controversy ... . ” Iranian Students Association v. Sawyer, 639 F.2d 1160, 1163 (5th Cir. 1981).
In order to determine whether the district court’s reliance on the appellants’ objections to the 1980 Plan was justified, it is necessary to examine the scope and proper focus of the “prevailing party” inquiry. In the absence of a merits adjudication, courts have experienced some difficulty determining precisely what circumstances justify a finding that the fee claimant has prevailed. Courts have developed a two-prong test to govern the inquiry: first, the party must have substantially received the relief sought, and, second, the lawsuit must have been a catalytic, necessary, or substantial factor in attaining the relief. See, e.g., Chicano Police Officer’s Association v. Stover, 624 F.2d 127, 131 (10th Cir. 1980). The position of claimants as defendant-intervenors, however, requires some modification of the test. Before considering the test to be applied, we must examine some of the circumstances that necessitate treating declaratory judgment actions instituted by a state or political subdivision under the Act differently than other cases that do not proceed to final judgment.
By statute, a redistricting plan, such as those at issue in the present case, can be precleared only by the Attorney General or the district court through a declaratory judgment action. Once a plan has been submitted to the Attorney General, although interested parties may voice their opposition or support of the plan, the final decision is the Attorney General’s alone. If the plan is precleared, that decision is not itself subject to judicial review. See City of Dallas v. United States, 482 F.Supp. 183, 185 (D.D.C.1979) (three-judge court). These facts combine in the context of a declaratory judgment action to place a defendant-intervenor in an unusual position. Although by the grant of intervention he has become a party, by statute he is precluded from having any actual impact on the approval or disapproval of what appellees here call a “compromise plan” submitted to the Attorney General during the course of litigation. The defendant-intervenor is thus powerless to participate in a meaningful way in any “settlement” or “compromise” negotiations.
A defendant-intervenor cannot withhold approval of the plan in the hopes of receiving terms more favorable to his interests. The submission of a “compromise plan” to the Attorney General, as a practical matter, strips a defendant-intervenor of all bargaining power. Furthermore, unlike a settlement in which some but not all parties participate, the nonparticipating party may not continue to litigate. Nor may the nonparticipating party present to the court objections to the compromise settlement. See id. at 186. With these unique characteristics in mind, we now consider the two-prong prevailing party test as it applies to suits such as the present one.
A. The Objective
In order to satisfy the first prong of the test, fee claimants must show that the objective sought to be accomplished by the intervention has been attained. One of the objectives of any intervening defendant in a section 5 declaratory judgment action is to prevent court approval of the plan or practice sought to be declared nondiscriminatory. At first glance, it would appear that any resolution of the suit that does not result in approval of the subject plan must be viewed as the attainment of this objective. When the case becomes moot due to the preclearance of a plan that is not the subject of the suit, however, we must look beyond the threshold objective. It is conceivable that plaintiffs could submit to the Attorney General, and obtain preclearance approval of, a plan less advantageous to the intervenors’ interests than the plan that is the subject of the suit. Accordingly, the court must determine whether the final re-suit represents, in a real sense, a disposition that furthers the interests of the defendant-intervenors.
On this point, we find the case of Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979), instructive. There, the Fourth Circuit noted that the “prevailing party” inquiry “is properly a pragmatic one .... Its initial focus might well be on establishing the precise factual/legal condition that the fee claimant has sought to change or affect so as to gain a benefit or be relieved of a burden.” Id. at 1319. The outcome, “in whatever form it is realized,” is measured against this benchmark; a comparison of the two must reveal “an actual conferral of benefit or relief from a burden.” Id. In the case at bar, the 1978 and 1979 Plans, as the benchmark, should be compared to the 1980 Plan, the outcome. If the interests of intervenors have been furthered by the differences shown among the plans, intervenors “have been successful on the central issue in the litigation,” Connor v. Winter, 519 F.Supp. 1337, 1342 (S.D.Miss.1981) (three-judge court), and the first prong of the test has been satisfied.
The above analysis necessarily implies that the County’s argument that Garcia should not be awarded fees because the intervenor’s proposed plan was not adopted must fail. Fee claimants under the Act need not show that they have prevailed on every aspect of the case or that their proposed plan was adopted in order to be found “prevailing parties.” See Ramos v. Koebig, 638 F.2d 838, 845 (5th Cir. 1981); Connor v. Winter, 519 F.Supp. at 1342. We believe, rather, that this argument is relevant to the equity of awarding fees and not to the prevailing party issue.
B. Substantial Factor
When a plaintiff seeks a fee award, the second prong of the inquiry is often couched in terms asking whether the lawsuit was a catalyst motivating defendants to provide the primary relief sought by the litigation, see, e.g., Robinson v. Kimbrough, 652 F.2d 458, 465 (5th Cir. 1981), or whether the lawsuit was a necessary factor in obtaining the relief. Id. See also Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978). When it is a defendant who seeks fees, however, it is obviously inappropriate to ask whether the lawsuit was a catalyst in achieving the result because, after all, the defendant did not institute the suit.
The court must make an objective assessment of' the proceedings to determine whether the defense of the suit, e.g., the promise of an aggressive defense strategy or the spectre of extended litigation, led plaintiffs to take the action that resulted in the mooting of the case. Because this portion of the inquiry involves facts that are totally within the control of the plaintiffs, the court must rely on whatever objective data are available. For these purposes, it is useful for the court to consider the chronological sequence of events and draw conclusions from the facts at hand. See Robinson v. Kimbrough, 652 F.2d at 466; Nadeau v. Helgemoe, 581 F.2d at 281.
In determining whether the defense of the suit was a causal, necessary, or substantial factor in obtaining the result, two concerns mandate that the focus of the inquiry be on the collective accomplishments of both the named and the intervening defendants. First, in a case that involves multiple defendants and that has not proceeded to trial, it is almost impossible for the court to determine whose efforts persuaded the plaintiffs to abandon their litigation endeavors and take action that, if successful, would moot the case. Second, viewing all defendants’ efforts collectively places suits that have not proceeded to final judgment on the same par with cases that have resulted in a final merits adjudication. At this stage of the inquiry the court need only determine that the intervenors in fact actively participated in the proceedings. If the court finds that the record, in conjunction with the submissions of the parties on this issue, fairly shows that the plaintiffs’ actions were in response to the opposition offered by both the named and intervening defendants in the case, the second prong of the test has been satisfied, and defendant-intervenors should be found to be “prevailing parties.”
A determination that a party has “prevailed,” however, means only that fee claimants are eligible for attorneys’ fees. The court must then consider whether a fee award would be “unjust” under the particular circumstances of the case. S.Rep.No. 295, 94th Cong., 1st Sess. 40 (1974). We believe that many of the arguments advanced by the County in this case are more relevant to this stage of the inquiry than to the prevailing party issue.
Accordingly, in the exercise of its discretionary function to determine whether an award of fees is just under the circumstances of this case, the court should consider whether the net result achieved is so far from the position originally propounded by the fee claimants that it would be stretching the imagination to consider the result a “victory” in the sense of vindicating the rights of the fee claimants. If the victory can fairly be said to be only a pyrrhic one, then an award of fees would presumably be inappropriate. The court should also consider the divergence, if any, between the positions espoused by the named defendants and the intervenors. If there is a considerable difference in these two positions, and if the result obtained can be viewed as adopting only the position of the named defendants, this factor would add considerable support to a finding that, although the result furthers the intervenors’ interests, an award of fees to them would be unjust.
In addition, we believe it proper for the court to consider whether the defendant-intervenors’ participation was necessary to protect their interests and furthered the public policy embodied in the Voting Rights Act. A determination of this nature is usually made at the time intervention is sought and normally will not require reevaluation unless some evidence to the contrary has come to light during the interim.
It is at this point that the court should also consider whether a fee claimant’s efforts had its own independent impact on the particular outcome of the case. It is not sufficient that intervenors were parties whose interests were furthered by the result achieved. Fee claimants must show that their participation in the case was not passive and that it was not a mere duplication of the efforts expended by the United States. Our discussion of factors to be considered in this context is not, of course, intended to be an exhaustive list of relevant concerns.
V.
In the case at bar, the district court found that defendant-intervenors had not prevailed. This determination was apparently premised solely upon intervenors’ opposition to the preclearance of the 1980 Plan. Although the simplicity of such a resolution is appealing, the prevailing party determination must be based upon consideration of all the circumstances that led to the final disposition of the case. See Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), aff’d sub nom. Parker v. Califano, 561 F.2d 320 (D.C.Cir.1977). Applying the test and considering the factors set forth above, we find that this was not a proper basis for resolution of the prevailing party issue.
It appears that the district court focused on the factors that led the Attorney General to give preclearance approval to the 1980 Plan rather than on the factors that led the County to abandon its litigation efforts, at least temporarily, and submit an alternate plan. Once the 1980 Plan was submitted to the Attorney General for approval, the result was entirely out of the hands of both the County and the intervenors. As we have noted, in this type of proceeding there is virtually no possibility of a settlement involving all the parties. Unless we are to rule that a defendant-intervenor cannot be a prevailing party unless the case proceeds to a final judgment on the merits — a result that would be contrary to the statute, legislative history, and case law — the focus must be on the factors that prompted the County to submit the alternate plan, rather than on factors, such as intervenors’ objections, that were meant to affect the Attorney General’s preclearance decision.
In addition, we note that section 5 of the Act provides in part that “[njeither an affirmative indication by the Attorney General that no objection will be made nor the Attorney General’s failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such [plan].” 42 U.S.C. § 1973c. Although the preclearance of the 1980 Plan effectively extinguished the controversy that existed between the County and the United States, under the express terms of the Act, it did not extinguish any controversy that may exist between the intervenors and the County. See City of Dallas v. United States, 482 F.Supp. at 185. The Act specifically preserves the right of other persons to bring an action to enjoin the enforcement of a precleared plan. When plaintiffs seek to resolve the controversy they have raised in the declaratory judgment action by submitting a different plan to the Attorney General, defendant-intervenors should not be faced with a Hobson’s choice of acquiescing in the plan and possibly foregoing their right to seek an injunction or raising their objections and foregoing attorneys’ fees for which they are otherwise eligible.
If in all other pertinent respects appellants can be considered to have prevailed, then the Attorney General’s preclearance of a plan to which appellants objected should not be the sole basis upon which the prevailing party issue is resolved. Inasmuch as it appears that the district court gave controlling weight to this factor, the district court’s order is vacated, and the case is remanded for further consideration in light of this opinion.
On remand, because the prevailing party issue is vehemently contested, the court should accompany its, decision on said issue with a statement of reasons. If the court finds that intervenors have prevailed but that a fee award would be unjust, such a finding should also be accompanied by a statement of reasons. Should the court find a fee award appropriate, a reasonable fee should be awarded in accordance with this court’s prior pronouncements. See Copeland v. Marshall, 641 F.2d 880 (D.C.Cir. 1980) (en banc); National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir.1982).
It is so ordered.
. For ease of reference, we will refer to appellants collectively as “Garcia.” The district court granted appellants’ motion to intervene as defendants on April 23, 1980, by fiat.
. 42 U.S.C. § 19731(e) (1976) provides:
In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
The discretionary portion of the attorneys’ fees inquiry is limited. In order to deny reasonable attorneys’ fees to a prevailing party, the court must find that special circumstances exist that would render such an award unjust. S.Rep.No. 295, 94th Cong., 1st Sess. 40 (1974), U.S.Code Cong. & Admin.News 1975, p. 774. See, Riddell v. National Democratic Party, 624 F.2d 539, 543-45 (5th Cir. 1980), and cases cited therein.
. Memorandum of Points and Authorities In Support of Defendant-Intervenors’ Motion for Attorneys’ Fees at 3, Commissioners of Medina County, Texas v. United States, Civ. No. 80-0241 (D.D.C.1981) (footnotes omitted).
. Plaintiffs’ Response to Defendant-Intervenors’ Motion for Attorneys’ Fees at 7, Commissioners of Medina County, Texas v. United States, Civ. No. 80-0241 (D.D.C.1981) (footnote omitted).
. It is not happenstance that in the cases discussed above the defendants who were awarded fees were also intervenors. Having voluntarily entered the suit, a defendant-intervenor’s position can more readily be analogized to that of a plaintiff. Accordingly, appellees’ argument that it is unfair to award fees to defendants who entered into the suit on their own motion is devoid of merit.
. The standards for awarding fees under the Voting Rights Act are generally the same as under the attorneys’ fees provisions of the 1964 Civil Rights Act. See S.Rep.No.295, 94th Cong., 1st Sess. 40 (1974). In addition, the “prevailing party” inquiry is generally the same for any type of case in which there has been no judgment on the merits. Accordingly, the precedents cited in this opinion are not restricted to Voting Rights Act cases.
. Preclearance by the Attorney General, however, does not foreclose the possibility of judicial scrutiny of the plan. A party may bring suit to enjoin the implementation of such a precleared plan. See 42 U.S.C. § 1973c (1976).
. Cf. Fain v. Caddo Parish Police Jury, 564 F.2d 707, 709 n.3 (5th Cir. 1977) (“in preventing the implementation of the objectionable plan the appellant ‘prevailed on an important matter in the course of litigation ....’”).
. For example, in a case challenging an at-large election system, the court found a conflict between the interests of black citizens and Mexican-American citizens. The at-large system was declared unconstitutional because it diluted the voting strength of blacks; the proposed remedy — an exclusive single member district plan — would tend to decrease the ability of Mexican-Americans to participate in the political process. See Lipscomb v. Wise, 643 F.2d 319, 321 (5th Cir. 1981).
. See discussion infra at pp. 442-443.
. In cases that have proceeded to a final adjudication on the merits and in which there are participating defendant-intervenors, if the result is a judgment that the plan or practice in question is discriminatory, the court would have no need to determine whether the defendant-intervenors’ participation in the suit was a necessary factor in obtaining the judgment. We believe that upon a final judgment in favor of defendants, the court must assume that a defendant-intervenor is a prevailing party. But cf. Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979) (plaintiff can be prevailing party even though final judgment entered against plaintiff), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980). A review of the equities of awarding fees to intervenors would be made during the phase of the fee procedures that questions whether there are circumstances present in the case that would render an award of fees unjust. We see no reason to advance the point at which this inquiry is made simply because the case has not proceeded to final judgment.
. See supra note 2.
. Intervention in section 5 declaratory judgment actions brought by a state or political subdivision should not be granted as a matter of course. The primary responsibility for vindication of the public interest in these cases has been entrusted to the Attorney General. See Apache County v. United States, 256 F.Supp. 903, 908 (D.D.C.1966) (three-judge court) (section 4 declaratory judgment action).
. See, e.g., Baker v. City of Detroit, 504 F.Supp. 841, 849 (E.D.Mich.1980).
. But cf. Caserta v. Kelly, 507 F.Supp. 561 (S.D.Tex.1981) (three-judge court) (Voting Rights Act plaintiffs found to be prevailing parties because their suit, although eventually mooted, motivated the government to institute a separate suit against the same defendants).
. Although the issue has apparently never been litigated, it is arguable that if intervenors consented to, or formally gave approval to, the 1980 Plan they would be estopped to seek an injunction in a separate suit.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_numresp | 3 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Joseph VOLPE, Petitioner, v. NORTHEAST MARINE TERMINALS, Midland Insurance Company and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents.
No. 463, Docket 81-4141.
United States Court of Appeals, Second Circuit.
Argued Dec. 10, 1981.
Decided Jan. 29, 1982.
Gary Sinawski, New York City (Harry Kresky, Cathy Hollenberg, and Kresky, Sinawski & Hollenberg, New York City, on the brief), for petitioner employee.
Leonard J. Linden, New York City (Linden & Gallagher, New York City, on the brief), for respondent employer and respondent carrier.
Before MOORE, TIMBERS and VAN GRAAFEILAND, Circuit Judges.
TIMBERS, Circuit Judge:
The essential issue on this petition to review is whether the Benefits Review Board (“the Board”), United States Department of Labor, in a proceeding involving a claim for disability benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1976) (“the Act”), having found that the administrative law judge (“the ALJ”) had misapplied the appropriate legal standard, erred in affirming the decision and order of the ALJ denying disability benefits. We hold that the Board erred.
The ALJ held a hearing on May 23,1979, after petitioner applied for disability benefits. In a decision and order dated August 2, 1979, the ALJ denied the application, holding that petitioner had not sustained a work-related injury and therefore was not entitled to benefits. The Board affirmed the ALJ in a decision and order dated July 12,1981, holding that there was substantial evidence to support the conclusion that the heart problems from which petitioner suffered were not work-related. One Board member dissented on the ground that the ALJ had misapplied the legal standard and that the majority of the Board, in affirming, had improperly rewritten the AU’s decision. Petitioner then filed the instant petition to review.
We grant the petition to review, vacate the decision and order of the Board, and remand the case to the Board for further proceedings consistent with this opinion.
I.
Petitioner Joseph Volpe was a longshoreman employed as a holdman at the time of the onset of his heart problems. He is now sixty years old. For two years prior to his claimed injury, he had complained of chest pains and had suffered from a peptic ulcer, gall bladder problems, arteriosclerosis, and angina pectoris. On October 21,1977, while unloading mail bags averaging more than fifty pounds each from the hold of a ship, he experienced a sharp pain in his chest and arm and began to perspire heavily. He was taken to a hospital.
He remained in the hospital for seventeen days. During the first five days, electrocardiograms showed no heart damage; his discomfort was diagnosed as angina pectoris (a heart-related ailment) and cholecystitis (inflammation of the gall bladder). On October 26, however, petitioner experienced considerably greater chest pains. It appears likely that on that day he sustained a myocardial infarction (a form of heart attack), although there is some dispute as to this. Electrocardiograms after that day showed some heart damage.
The ALJ found that petitioner had not sustained a myocardial infarction on October 21, 1977 — a finding that petitioner does not dispute — nor any other injury on October 21. The ALJ stated that the chest pains that caused petitioner to leave work on October 21 probably were a symptom of gall bladder disease, or peptic ulcer, or, if heart-related, were a symptom of angina pain. Such pain, according to the ALJ, did not constitute an injury “per se” under the Act. The ALJ concluded that he could not detect any association between petitioner’s work activity and — on one hand — the gall bladder, peptic ulcer, or angina pain which the ALJ found had caused petitioner to leave work on October 21, or — on the other hand — the infarction which petitioner may have sustained on October 26.
The Board, without expressly holding erroneous the ALJ’s conclusion that petitioner had not sustained an injury on October 21, did hold that the pain which petitioner experienced that day was an injury. The Board stated that the ALJ “apparently” had recognized that the presumption of work-relatedness applied and had shifted the burden to the employer to show that the injury was not work-related. The Board affirmed the ALJ on the ground that the employer had successfully rebutted the presumption. We disagree.
II.
In considering a claim for disability benefits under the Act, there are four stages in the resolution of the claim. First, the claimant must show that he sustained an injury. Bath Iron Works Corp. v. White, 584 F.2d 569, 574 (1 Cir. 1978). Second, once an injury is established, a presumption arises that the injury was work-related. 33 U.S.C. § 920(a) (1976) (“Section 20 presumption”). Third, the employer then must present substantial evidence to rebut the work-relatedness of the injury; if he does, the presumption disappeárs. Del Vecchio v. Bowers, 296 U.S. 280, 286 (1935). Fourth, if the presumption, which the Del Vecchio Court emphasized is insufficient to justify an award for a claimant without some independent evidence, is rebutted, there still must be an evaluation of whether the evidence as a whole would justify a holding for the employer. Parsons Corp. of California v. Director, Office of Workers’ Compensation Programs, 619 F.2d 38, 41 (9 Cir. 1980).
The findings of an ALJ in a disability benefits case should be affirmed by the Benefits Review Board if the findings are supported by substantial evidence in the record as a whole. 33 U.S.C. § 921(b)(3) (1976). See Potenza v. United Terminals, Inc., 524 F.2d 1136, 1137 (2 Cir. 1975) (per curiam). The same standard applies to review by courts of appeal. Potenza, supra, 524 F.2d at 1137. The Board is not permitted to supplement the ALJ’s findings with its own. Walter Tantzen, Inc. v. Shaughnessy, 601 F.2d 670, 672 n.3 (2 Cir. 1979), vacated on other grounds sub nom. Director, Office of Workers’ Compensation Programs v. Walter Tantzen, Inc., 446 U.S. 905 (1980). Rather, the Board should remand the case to the AU for further findings. 33 U.S.C. § 921(b)(4) (1976).
In deciding a disability benefits case, the ALJ, the Benefits Review Board, and the reviewing courts must heed the policy underlying the Act as stated by the Supreme Court in one of the earliest cases to interpret the Act, Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408 (1932), where the Court observed that the Act, like others similar to it,
“operate[s] to relieve persons suffering [work-related] misfortunes of a part of the burden and to distribute it to the industries and mediately to those served by them. [Such laws] are deemed to be in the public interest and should be construed liberally in furtherance of the purpose for which they were enacted and, if possible, so as to avoid incongruous or harsh results.” Id. at 414.
In implementing this policy, “all doubtful questions of fact [are to] be resolved in favor of the injured employee.” Parsons Corp. of California, supra, 619 F.2d at 41.
In the instant case, we hold that the decision and order of the Board must be vacated and the case must be remanded for further finding's because the AU did not require the burden of proof to be shifted to the employer to show that the injury was not work-related. Instead, the AU focused his attention on the lack of proof of a myocardial infarction on October 21, which, according to the ALJ, meant that there was no injury as of that day. This was error. As the Board acknowledged, the pain experienced by petitioner that day did constitute an injury. Thus the ALJ improperly permitted the burden of proof to remain on petitioner.
The record, moreover, is too incomplete to justify the Board’s attempt to affirm the ALJ notwithstanding this error. In several instances the Board’s decision suggests an awareness that the ALJ’s vague conclusions were not supported by sufficient findings of fact. For example, according to the Board, the ALJ “apparently concluded” that any illness sustained at work on October 21 had no relationship to petitioner’s work activities; and “it appears” that the ALJ concluded that there was no association between the gall bladder problem and the heart problem on October 26.
We have held that it is inappropriate for the Board to supplement an incomplete record. “We deprecate the course followed by the BRB in supplementing the ALJ’s findings with its own findings, especially on contested matters. . . . Except with respect to uncontested matters, the BRB is not entitled to make its own findings of fact, nor are we.” Walter Tantzen, Inc., supra, 601 F.2d at 672 n.3.
Here, the ALJ did state, in the last paragraph of his decision, that the absence of any hospital records showing that petitioner sustained heart damage before October 26 established that the October 26 infarction was not work-related. He added that, even if the Section 20 presumption applied, it was successfully rebutted. We hold that this conclusion is not justified by the ALJ’s findings. A further hearing is required to determine whether this conclusory holding is, or is not, supported by the evidence. As stated above, even the Board was uncertain with respect to the factual underpinning for the ALJ’s vague conclusions.
Of critical importance, in our view, there was evidence which directly contradicts the AU’s finding that the October 26 infarction was not work-related. We refer to the evidence that appellant had suffered from preexisting arteriosclerosis and angina pectoris before the October 21 incident. Although a preexisting condition does not constitute an injury, aggravation of a preexisting condition does. The heart problems which surfaced on and after October 26 create a strong inference that petitioner’s work activities aggravated his preexisting condition to an extent which might be sufficient to allow recovery. Even Dr. Matis, the cardiologist whose testimony was relied upon by the AU and the Board, could not rule out angina pectoris as the cause, in part, of appellant’s October 21 pain. Contrary to the AU’s finding, therefore, it is possible that lifting mail bags aggravated petitioner’s preexisting heart condition to such an extent that he suffered angina pains on October 21 and a myocardial infarction on October 26.
In making these observations, we wish to make it clear that it is the function of the AU — not that of the Board, and not that of our Court — to make appropriate findings of fact. We do hold, however, that petitioner is entitled to have appropriate findings of fact made by the AU and to have conclusions of law made with a proper factual underpinning.
The petition to review is granted; the decision and order of the Benefits Review Board is vacated; and the case is remanded to the Board for further proceedings consistent with this opinion.
. An accepted definition of injury is that stated in Furlong v. O’Hearne, 144 F.Supp. 266, 270 (D.Md.1956), aff’d per curiam, 240 F.2d 958 (4 Cir. 1957), which defined the term as a “lesion or change in any part of the system [which produces] harm or pain or a lessened facility of the natural use of any body activity or capability.”
. 33 U.S.C. § 920(a) (1976) provides:
“In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary—
(a) That the claim comes within the provisions of this chapter.”
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_usc1sect | 174 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Robert L. RAMSOUR, Appellant v. UNITED STATES of America, Appellee.
No. 15335.
United States Court of Appeals District of Columbia Circuit.
Submitted May 6, 1960.
Decided June 9, 1960.
Appellant filed a brief, pro se, and his case was treated as submitted thereon.
Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, submitted on the brief for appellee.
Before Phillips, Senior United States Circuit Judge for the Tenth Circuit, and Fahy and Washington, Circuit Judges.
Sitting by designation pursuant to Section 294(d), Title 28, U.S.Code.
PER CURIAM.
Appellant was convicted on eleven counts of an indictment under the narcotics laws. 21 U.S.C. § 174 (1958); 26 U.S.C. §§ 4704(a), 4705(a) (1958). He filed a timely application for leave to appeal in forma pauperis, which the District Court denied. Later, he moved to vacate his sentence, under 28 U.S.C. § 2255 (1958). The motion was denied, and this appeal followed.
Whether this case be considered as a belated direct appeal from the judgment of conviction, cf. Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, or simply as an appeal from the order denying the motion under Section 2255, we must conclude that appellant is not entitled to relief. We have reviewed the entire record, and perceive no prejudicial error as to any of the counts of which appellant was found guilty, or in the denial of the motion under Section 2255.
Affirmed.
. We express no opinion as to whether on the facts here appellant is entitled to have his ease so considered.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 21? Answer with a number.
Answer: |
songer_usc1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
James A. HEACKER and wife Marie Heacker, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellees.
No. 17623.
United States Court of Appeals Fifth Circuit.
Sept. 25, 1959.
Edward J. Dees, Dallas, Tex., for appellants.
Donald K. King, Whitney R. Harris, Dallas, Tex., Grover Sellers, Sulphur Springs, Ark., for appellees.
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
CAMERON, Circuit Judge.
Appellant James A. Heacker, individually and in behalf of his wife, Marie Heacker, instituted this action for damages in the district court alleging negligence of the agents, servants and employees of the appellee Southwestern Bell Telephone Company resulting in injuries to Marie Heacker when she fell on the ice-covered sidewalk along the front of the appellee’s premises in Greenville, Texas. This is an appeal from a summary judgment granted by the court below in favor of defendant-appellee. The determinant questions presented are whether appellant Marie Heacker, at the time of the accident, was within the scope of her employment, and whether the filing of a claim for Workmen’s Compensation, receipt of medical expenses and other compensation' thereunder, constitutes an election of remedies or estops the appellant from maintaining a common law action.
We think the facts involved in these questions are uncontroverted and are revealed clearly by the pleadings, the deposition of Marie Heacker (attached to the motion for summary judgment), and statements and argument of counsel before the district court which appear in the record.
Marie Heacker was a career employee of Southwestern Bell Telephone Company employed in 1935, assigned to the telephone exchange in Dennison, Texas in 1943. In the latter part of January, 1956, having attained the position of service assistant, she was temporarily assigned on an expense account covering meals, lodging and travel, to the exchange in Greenville, Texas, there to instruct the local operators in problems which would arise in connection with the pending conversion to the dial system.
After arrival in Greenville, Mrs. Heacker found accommodations in a local hotel situated several blocks from the telephone exchange. The injury involved in this case was suffered a few minutes before 8:00 a. m. on' Feb. 3rd. Mrs. Heacker, on that morning, left the hotel at approximately 7:40 a. m. with another employee and began walking to the telephone office, as she had done on two or three previous mornings. It was a cold and icy day and the sidewalks between the hotel and the exchange were, for the most part, difficult of travel due to the accumulation of ice and snow thereon. Because of the treacherous condition of the sidewalk, the two employees of Southwestern chose to walk in the streets a substantial portion of the journey between the hotel and the exchange building.
Upon arrival at a point directly in front of the Southwestern Building, the two ladies crossed the street and, after Mrs. Heacker had stepped from the street onto the sidewalk running across the front of the exchange building, she attempted to take a second step on the sidewalk, slipped and fell on the icy surface, fracturing the radius and ulna bones of her right wrist.
Within a short period of time after her injury, she was taken to a local clinic and placed under the care of an orthopedist. Three days later she was visited by two representatives of Southwestern, at which time she signed a completed printed form entitled “Notice of Injury and Claim for Compensation, Texas Workmen’s Compensation,” in which she gave notice of her injury, filed a claim for compensation due under the Workmen’s Compensation Law of Texas, and requested that the Industrial Accident Board take action on her claim as soon as possible. On the basis of this claim, the Texas Compensation Insurance Company paid to Mrs. Heacker $1,810.71, which sum represents compensation due from the date of the injury until the time of her return to work on June 23, 1957, computed at the rate of $25 per week for a total of seventy-two weeks and three days. Medical expenses based upon this claim in the amount of $1,467.64 were also paid by the Texas Compensation Insurance Company. Later surgery was performed January 14, 1957. On June 24, 1957, Mrs. Heacker resumed her duties with the appellee. During her absence from work she had received full pay for the first year, and half pay thereafter.
This action was brought by her husband on Feb. 3, 1958. The complaint alleges that Southwestern and those acting in its behalf were guilty of negligence with respect to Marie Heacker relating generally to the condition of the sidewalk in front of the premises of said company at Greenville, Texas on the day of the accident and that Marie Heacker, because of said negligence and the injury resulting therefrom, was permanently incapacitated from performing her usual duties of employment and suffered damages in the amount of $50,500. Southwestern filed its answer denying the charge of negligence and disclaiming any liability to plaintiff by reason of the accident and injuries.
Southwestern thereafter filed its motion for a summary judgment upon the grounds (1) that the exclusive remedy of the employee in this controversy for the accidental injury was under the Workmen’s Compensation Law of Texas against the insurance carrier of Southwestern Bell Telephone Company, and (2) that by filing her claim for compensation with the Industrial Accident Board and accepting compensation thereunder, Marie Heacker elected to pursue her remedy under the Workmen’s Compensation Law of Texas, and is thereby precluded from maintaining this common law action against her employer.
Generally, the question of whether an employee was acting within the scope of his employment is an issue of fact to be resolved by the jury. Texas Indemnity Insurance Co. v. Hubbard, Tex.Civ.App.1940, 138 S.W.2d 626; New Amsterdam Casualty Co. v. Hosch, Tex. Civ.App.1935, 78 S.W.2d 633. Where, however, as here, the relevant evidence is so indisputed and so conclusive that reasonable minds cannot reach different conclusions, the question becomes one of law. See Croswell v. Commercial Standard Ins. Co., Tex.Civ.App.1933, 56 S.W.2d 918; Maryland Casualty Co. v. Williams, Tex. Civ.App.1932, 47 S.W.2d 858; Texas Employers’ Insurance Association v. Sewell, Tex.Civ.App.1930, 32 S.W.2d 262.
Out of the phenomenal industrial growth of this century arose the conviction among the public that the common law rules of liability were unsuitable to afford adequate relief to the countless number of persons sustaining injury in their employment. The belief became widespread that the burden of employment-connected deaths and injuries should rest with employers.
Workmen’s Compensation statutes have been quite generally enacted whereunder compensation is paid without regard to common law rules of liability to those injured in the course of their employment. 58 American Jurisprudence, Workmen’s Compensation, § 2, p. 575. Either by statute or by court decision, it is generally established that such statutes should be liberally construed as to coverage. This is true in Texas whose law governs. Hooper v. Great American Indemnity Co., 5 Cir., 1939,102 F.2d 739; Federal Surety Co. v. Ragle, Tex.Civ. App.1930, 25 S.W.2d 898; Vernon’s Annotated Texas Statutes, Article 8306 et seq. While there are many cases from Texas courts denying coverage to employees while going to and from the place of their employment, there are many holding the other way and this case, in our opinion, falls within the latter group. It is clear that under the Texas Statute, injuries are compensable which result from risks inherent in, or incident to, the conduct of the employer's business without regard to the time or place the accident occurred.
In National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, we held that an employee injured in a restaurant on the company premises during her lunch period was entitled to compensation notwithstanding the fact that the injury occurred outside of her normal hours of service and that she was not discharging any specific duties connected with her employment at the time of the accident.
In Federal Surety Co. v. Ragle, supra, the employee was injured while attempting to crank an automobile in which he was to ride home after work. The Texas Commission of Appeals, in affirming the action of the Court of Civil Appeals in granting compensation, said: “Since it was not required * * * that Ragle should spend the nights or time not at work at the well * * * it was necessary * * * that he leave the well and go somewhere for rest and sleep and return thereto for duty. Whatever dangers or perils he encountered in leaving or approaching the premises were encountered in the usual and customary manner that he might perform the duties imposed by his contract of service.” And later, in the same opinion: “It is also equally well established that all dangers and perils incident to the usual and customary methods of entrance to and retirement from employer’s premises or zone of employment were perils incident to and ‘arising out of employment,’ as provided for under article 8309 R.S. 1925.”
In Ragle, the Commission dealt at length with Texas cases on the subject of whether injuries sustained going to and from work were compensable and leaned heavily upon the Supreme Court case of Cudahy Packing Co. of Nebraska v. Par-ramore, 1923, 263 U.S. 418, 426, 44 S.Ct. 153, 155, 68 L.Ed. 366. That case, in the words of the Commission, “involved the construction of a similar statute enacted by the state of Utah.” There, the customary method of ingress and egress to the Cudahy Packing Plant was down a road and across some railroad tracks. Parramore, an employee of Cudahy was killed at this crossing on his way to work one morning. The Supreme Court, in holding that the accident resulting in the death of Parramore arose out of the course of his employment, made the following observation:
“Here the location of the plant was at a place so situated as to make the customary and only practical way of immediate ingress and egress one of hazard. Parramore could not, at the point of the accident, select his way. He had no other choice than to go over the railway tracks in order to get to his work; and he was in effect invited by his employer to do so and this he was obliged to do regularly and continuously as a necessary concomitant of his employment, resulting in a degree of exposure to the common risk beyond that to which the general public was subjected. The railroad over which the way extended was not only immediately adjacent to the plant, but, by means of switches, was connected with it, and in principle it was as though upon the actual premises of the employer.
“We attach no importance to the fact that the accident happened a few minutes before the time Parra-more was to begin work, and was therefore, to that extent, outside the specific hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose.” [263 U.S. 426, 44 S.Ct. 155.]
In the case before us, the hazards of the snow and ice were perils confronting the public in general. Persons utilizing the streets and sidewalks in the ordinary course of their day’s activities were free, as was Mrs. Heacker most of the distance between the hotel and the Southwestern Building, to choose the routes they would take, avoiding those areas which in their judgment appeared to be impassable. In her deposition, Mrs. Heacker stated that on several occasions between the hotel and the exchange, it was necessary to walk in the street to avoid particularly dangerous areas. It appears from her deposition that this power of selection terminated upon her arrival in front of appellee’s premises. In order to reach the premises where her employment required her to be, she was required to negotiate the icy sidewalk in front of the Southwestern Building. It was a hazard or peril incident to her employment on the day of the accident.
In Texas Employers Insurance Association v. Cobb, 1938, 118 S.W.2d 375, the Texas Court of Civil Appeals declared that where an employee, whose duties required that he travel from place to place collecting accounts, was asphyxiated in a motel on a Sunday night, the accident causing his death was within the coverage envisioned by the Texas Workmen’s Compensation Statute. The court, in that case, concluded that the duty imposed upon him by the character of his employment to go from place to place at the instance of his employer formed a causal connection between the accident and the employment.
The responsibilities and duties imposed upon Marie Heacker by virtue of her employment required that she travel from Dennison, Texas to Greenville, to ñnd lodging in the latter city and to pass back and forth between her chosen place of lodging and the telephone exchange building. On the day of the accident, the weather was cold and the sidewalks covered with snow and ice, but the responsibilities of Marie Heacker remained the same. It is not necessary for us to decide whether an injury resulting from an accident occurring a block or more away could be said to have arisen from her employment. The place of accident was, for all practical purposes, a part of the premises of the appellee. Marie Heacker had no alternative but to attempt to- cross the hazardous sidewalk fronting these premises. Her employment contemplated her doing just that before the hour on which her duties would commence.
In our view, the danger inherent in any attempt of Marie Heacker to cross the ice-bound sidewalk in front of appellee’s premises on her way to work cannot be other than a peril or hazard incident to or connected with her employment, and we hold that the injury was within the coverage of the Texas statute. Under Article 8306, § 3, Vernon’s Texas Civil Statutes, employees injured within the scope of their employment and their representatives have no right of action against their employer, and their sole remedy is under the Workmen’s Compensation Statute of Texas. It is, therefore, clear that the court below did not err in granting the motion of the company for a summary judgment. The judgment is, therefore,
Affirmed.
. Cf. Republic Underwriters v. Terrell, Tex.Civ.App.1939, 126 S.W.2d 752.
. Federal Surety Co. v. Ragle, Tex.Com. App.1931, 40 S.W.24 63, 64; and Federal Surety Co. v. Ragle, Tex.Civ.App.1930, 25 S.W.2d 898.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
sc_petitioner | 028 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
TERRITORY OF ALASKA v. AMERICAN CAN CO. et al.
No. 40.
Argued December 9, 1958.
Decided January 12, 1959.
J. Gerald Williams, Attorney General of Alaska, argued the cause for petitioner. With him on the brief were David J. Pree, Assistant Attorney General, and Jack O’Hair Asher, Special Assistant Attorney General.
W. C. Arnold argued the cause for respondents. With him on the brief were H. L. Faulkner and R. E. Robertson.
Mr. Justice Douglas
delivered the opinion of the Court.
Alaska, while a Territory, enacted a law which levied a tax at the rate of 1 percent on all real and personal property. L. 1949, c. 10, § 3. The tax was challenged in litigation without success. Some paid the tax voluntarily; others became delinquent. In 1953 the tax statute was repealed. L. 1953, c. 22. Thereafter petitioner instituted the present suits to collect taxes owing for the years 1949 to 1952, inclusive. The District Court granted a motion to dismiss, holding that no liability for these taxes had survived the repeal. 137 F. Supp. 181. The Court of Appeals affirmed. 246 F. 2d 493. The case is here by a petition for writ of certiorari which was granted in view of the fiscal importance of the question to Alaska. 356 U. S. 926.
Alaska has a general law, saving rights accrued under a statute that is repealed. The lower courts, however, held that this case was governed not by that provision but by § 2 (a) of the repealing Act which reads as follows:
“Section 1 of this Act shall not be applicable to:
“(a) any taxes which have been levied and assessed by any municipality, school or public utility district under the provisions of Chapter 10, Session Laws of Alaska 1949, as amended, or which are levied and assessed during the current fiscal year of such municipality, school or public utility district.”
It was held that this specific enactment qualifies the general repeal law and that the purpose of the 1953 Act was to wipe out any and all liabilities to pay taxes under the repealed law that had accrued prior to the date of repeal. Support for that conclusion was found in the title of the 1953 Act which includes the words “excepting from repeal certain taxes,” no qualifications whatsoever being indicated.
We take a different view. Section 2 (a) of the 1953 Act, as we read it, has nothing to do with any taxes other than those payable to a municipality, a school or public utility district, none of which is here involved. If it had done no more than save all accrued taxes in those categories, the case would be in quite a different posture. Section 2 (a), however, does not do that. It was protective of municipal, school, or public utility taxes in a much broader way. It saved first, those taxes that had been “levied and assessed” and second, those to be “levied and assessed during the current fiscal year.” This was to make sure, as the dissent below said, that municipalities and school and public utility districts (though not the Territory itself) would have the right to levy and collect the old taxes for the current year 1953, whether before or after the repealing Act had taken effect. So construed, § 2 (a) carves no exception from the general saving statute and does not interfere with the collection of unpaid taxes which accrued prior to repeal.
We are reinforced in this conclusion by the legislative history of the bill that became the repealing Act, a history of which we take judicial notice. See United States v. American Trucking Assns., 310 U. S. 534, 547. And see Wigmore on Evidence (3d ed. 1940) § 2577. The bill as introduced “cancelled, repealed and abrogated, and declared null and void” “all accrued and unpaid taxes” under the 1949 Act. That provision was deleted, however, by a House Committee, and it never became part of the law. The bill passed the House without it. The present § 2 (a) was added in the Senate; and the House agreed. If we adopted the construction taken below, we would be reading into the Act by implication what the Legislature seemingly rejected.
The judgment of the Court of Appeals is reversed and, as there are other questions which were raised by the appeal (246 F. 2d 493, 495) but not reached by that court, the cause is remanded to it for proceedings in conformity with this opinion.
It is so ordered.
Mr. Justice Frankfurter and Mr. Justice Harlan took no part in the consideration or decision of this case.
See Mullaney v. Hess, 189 F. 2d 417; Hess v. Mullaney, 213 F. 2d 635.
Alaska Comp. L. Ann., 1949, § 19-1-1, reads as follows:
“The repeal or amendment of any statute shall not affect any offense committed or any act done or right accruing or accrued or any action or proceeding had or commenced prior to such repeal or amendment; nor shall any penalty, forfeiture or liability incurred under such statute be released or extinguished, but the same may be enforced, continued, sustained, prosecuted and punished under the repealing or amendatory statute save as limited by the ex post facto and other provisions of the Constitution, in which event the same may be enforced, continued, sustained, prosecuted and punished under the former law as if such repeal or amendment had not been made.”
Section 1 of the 1953 Act provides:
“That Chapter 10, Session Laws of Alaska, 1949, as amended by Chapter 88, Session Laws of Alaska, 1949, be and it is hereby repealed.”
We refer to the Alaska House and Senate Journals and to the original bill as introduced in the House which is on file with the Secretary of Alaska, a copy being certified by him.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Gerald Issac SASSOON, Petitioner-Appellant, v. Leroy STYNCHOMBE, Sheriff and Arthur K. Bolton, Attorney General of the State of Georgia, Respondents-Appellees.
No. 80-7525.
United States Court of Appeals, Fifth Circuit. Unit B
Aug. 28, 1981.
Frank J. Petrella, Atlanta, Ga., for petitioner-appellant.
Harrison Kohler, John W. Dunsmore Jr., Asst. Attys. Gen., John C. Walden, Senior Asst. Atty. Gen., Atlanta, Ga., for respondents-appellees.
Michael D. Anderson, Asst. Dist. Atty., Jonesboro, Ga., Clayton Judicial Circuit, for State of Ga.
Before KRAVITCH and HENDERSON, Circuit Judges, and THOMAS , District Judge.
District Judge of the Southern District of Alabama, sitting by designation.
HENDERSON, Circuit Judge:
Gerald Issac Sassoon, a prisoner presently in custody pursuant to the judgment of a court of the State of Georgia, appeals from the district court’s denial of his application for a writ of habeas corpus. We affirm the judgment, but for reasons different than those relied upon by the district court. The district court found that Sassoon’s incarceration violated federal law, but that he had waived the violation. We find that the question can properly be considered in the federal courts, but that there was no federal violation.
In 1974 Sassoon pleaded guilty to interstate transportation of forged securities and began the service of his sentence in the United States Penitentiary in Atlanta. On May 23,1974, a grand jury in Clayton County, Georgia, returned an indictment against him for theft by deception. In March, 1975, Sassoon learned that Clayton County authorities had lodged a detainer against him pursuant to the Interstate Agreement on Detainers, 18 U.S.C.A. App. (1981 Supp.); Ga. Code Ann. §§ 77-501b — 77-516b (hereinafter referred to as the “Detainer Agreement”).
On July 7, 1975, Sassoon moved for dismissal of the Clayton County indictment for want of a speedy trial. This dismissal, he reasoned, would also “expunge the detainer from the record.” See Detainer Act Article 111(a). The state responded by providing federal authorities with written notice that they would accept temporary custody of Sassoon. See Article IV(a). See generally United States v. Umbower, 602 F.2d 754 (5th Cir. 1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980); United States v. Scallion, 548 F.2d 1168, 1173 (5th Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978).
On August 21, 1975, Sassoon was removed to the Clayton County jail. On August 26, 1975 he was arraigned and returned to the United States Penitentiary in Atlanta. On September 24, 1975 he was taken to Clayton County Superior Court for trial which concluded with his conviction on September 26, 1975. He was returned to the penitentiary in Atlanta on October 2, 1975. On October 24, 1975, he was again brought before the state trial court, where he was sentenced to a ten-year term in prison. Later in the day he was transported back to Atlanta. His conviction was affirmed by the Georgia Court of Appeals. Sassoon v. State, 138 Ga.App. 172, 225 S.E.2d 732 (1976).
In October, 1976, Sassoon filed a petition for a writ of habeas corpus in the Superior Court of Fulton County. He alleged that his indictment should have been dismissed when the Clayton County authorities returned him to the Atlanta penitentiary without first placing him on trial. Construed literally, the Detainer Agreement entitled him to relief.
If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Article IV(e), 18 U.S.C.A. App. § 2 (1981 Supp.); Ga. Code Ann. § 77-505b(e).
The state asserted that while he was awaiting trial in Clayton County Sassoon requested to be returned to Atlanta for medical treatment, thereby waiving his right to a trial prior to returning to federal custody. The Fulton County Superior Court found that no such request was made and granted the writ.
The Supreme Court of Georgia reversed. State v. Sassoon, 240 Ga. 745, 242 S.E.2d 121 (1978). The court observed that there had been conflicting evidence on whether Sassoon had requested medical treatment in Atlanta, but declined to reach the issue. The court instead held that a “technical” violation of the Detainer Agreement does not infringe a prisoner’s protected rights when there is no showing of injury or prejudice.
Sassoon then brought the present action in the federal district court pursuant to the provisions of 28 U.S.C.A. § 2254, making essentially the same allegations. The district court found it “undisputed that a violation of the detainer agreement exists.” Order at 1. The court also rejected the Georgia Supreme Court’s conclusion that demonstrated prejudice is a prerequisite to habeas relief. Id. at 2. The court nevertheless denied the writ, stating that Sassoon’s failure to raise the issue on his direct appeal constituted a waiver of his rights. Id. at 3-4.
In this appeal Sassoon insists that he did not waive his Detainer Agreement rights and that in any ease, the district court could not have found a knowing waiver without first conducting an evidentiary hearing. The state, joined by the Clayton County district attorney as amicus curiae, assert that Sassoon did know of his rights when he appealed his conviction.
Although the Clayton County district attorney would have us hold otherwise, it is too late in the day to argue that Sassoon was returned to the Atlanta penitentiary at his own request. The district court’s denial of relief was based not on Sassoon’s waiver of his rights under the Detainer Agreement but rather the waiver of the state’s violation. This waiver occurred, the court said, when Sassoon neglected to raise the issue on direct appeal. It is well established that a defendant's failure to comply with the procedures adopted by the state to preserve errors will sometimes immunize those errors from subsequent federal habeas corpus review. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). However, the Sykes bar only applies when the state courts rely on a procedural default. It “does not preclude federal habeas review of a petitioner’s constitutional claim if the state court adjudicates the claim on the merits.” Thompson v. Estelle, 642 F.2d 996, 998 (5th Cir. 1981). As the district court noted, the Georgia Supreme Court “expressly pretermitted ‘questions of waiver, estoppel and unpermissible collateral attack raised by the State as a result of Sassoon’s proceeding by way of petition for the writ of habeas corpus rather than by appeal.’ ” Order at 3, quoting 240 Ga. at 747, 242 S.E.2d 121. Where “the state appellate courts adjudicated the issue on the merits. . . [it is] open on federal habeas. The rule of Wainwright v. Sykes does not foreclose federal courts from reaching issues state courts treat as open.” Cannon v. State of Alabama, 558 F.2d 1211, 1216 n. 12 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978); Accord Thompson; Moran v. Estelle, 607 F.2d 1140, 1141 — 42 (5th Cir. 1979). Since the Georgia court addressed the merits, we are bound to follow the same course.
A state prisoner is entitled to federal habeas corpus relief “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.A. § 2254. The Supreme Court recently held that the Interstate Agreement on Detainers “is an interstate compact approved by Congress and is thus a federal law subject to federal rather than state construction.” Cyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 706, 66 L.Ed.2d 641 (1981); see also Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975). The ultimate question here, then, is whether federal law requires release for a violation of section IV(e) of the Detainer Agreement when the prisoner is not prejudiced thereby, see note 5, supra.
As stated earlier, the Detainer Agreement provides that in the event the prisoner is returned to the sending jurisdiction before trial, the indictment “shall not be of any further force,” and the trial “court shall enter an order dismissing the same with prejudice.” (emphasis supplied). This language, which is the only conceivable basis for release, cannot compel issuance of the writ where the prisoner does not even allege that he was harmed by the violation. We agree with the Supreme Court of Georgia which considered the issue at length, albeit apparently as a matter of state law, and concluded that release is not justified where no “legitimate interest” of the prisoner is defeated by the violation.
“[A] primary purpose of the Agreement is to protect prisoners against whom detainers are outstanding.” 449 U.S. at 449, 101 S.Ct. at 712. No protection is necessary where no injury is threatened. Cf. Mars v. United States, 615 F.2d 704, 707 (6th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980) (no § 2255 relief if no harm from violation); United States v. Chico, 558 F.2d 1047, 1049 (2d Cir. 1977), cert. denied, 436 U.S. 947, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978) (no violation where “merely removed for a few hours at a time and immediately returned”). But cf. United States v. Williams, 615 F.2d 585, 589-90 (3d Cir. 1980) (preserved violation of Agreement would be “fundamental defect” meriting § 2255 relief). As mentioned by the Supreme Court of Georgia, the evidence is uncontroverted that Sassoon’s return to the Atlanta penitentiary allowed him to participate in the extensive rehabilitative education program available there.
Like Georgia’s highest court,
This court declines to apply [Article IV(e)] mechanically contrary to the stated purposes of the Interstate Agreement on Detainers because such an application would be based upon a construction of the Agreement against, rather than in behalf of, the legitimate interest of Sassoon in receiving rehabilitative education while in federal custody. On the facts of the present case, Clayton County’s keeping Sassoon for trial, rather than returning him immediately after arraignment, would have interfered with Sassoon’s legitimate interest in participating in the program of rehabilitation in which he was enrolled. A brief removal of a prisoner to the receiving jurisdiction and his prompt return to the sending jurisdiction after arraignment and prior to trial is consonant with the intention of the Interstate Agreement on Detainers... .
240 Ga. at 749, 242 S.E.2d 121.
The judgment of the district court is AFFIRMED.
. The Georgia and federal version of the Detainer Agreement are virtually identical. See note 4, infra.
. Sassoon remained in the custody of a United States Marshal throughout October 24, 1975. See 18 U.S.C.A. App. § 2 art. V(a) (19,81 Supp.).
. Sassoon only complains of the pre-trial transfer. The Supreme Court of Georgia held that the relevant sections of the Detainer Agreement are not addressed to post-trial transfers. 240 Ga. 745 at 749, 242 S.E.2d 121.
. The quotation is from the United States Code Annotated. The Georgia and federal enactments differ in punctuation and capitalization, but are substantively identical.
. Counsel conceded that the transfer had not interfered with Sassoon’s rehabilitation. 240 Ga. at 747, 242 S.E.2d 121.
. The amicus curiae brief also maintains that there was no violation absent prejudice.
. Although the question is not before us, it seems that a prisoner returned at his own request would not have waived a violation of the Detainer Agreement, but rather waived his rights thereunder — in other words, there would have been no violation. Cf. United States v. Boggs, 612 F.2d 991, 993 (5th Cir. 1980); Scallion, 548 F.2d at 1170.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_appel1_7_5 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
UNITED STATES of America, Appellee, v. Paul BAYKOWSKI, Jr., Appellant.
No. 79-1601.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 10, 1979.
Decided Feb. 20, 1980.
Rehearing and Rehearing En Banc Denied March 13, 1980.
James J. Knappenberger, Shaw, Howlett & Schwartz, Clayton, Mo., argued, for appellant; C. Clifford Schwartz, Clayton, Mo., on brief.
Evelyn M. Baker, Asst. U. S. Atty., St. Louis, Mo., argued, for appellee; Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief.
Before LAY, Chief Judge, and HEA-NEY and HENLEY, Circuit Judges.
The Honorable Donald P. Lay became Chief Judge of the Eighth Circuit on January 1, 1980.
HENLEY, Circuit Judge.
Appellant Paul Baykowski, Jr. was convicted by jury in the United States District Court for the Eastern District of Missouri on two counts of a seven-count indictment which included charges against alleged co-conspirators Norman Owens, Linda Fay Owens, Raymond Bryan and William Politte as well as against Baykowski. The counts specifically charging Baykowski were Count II (conspiracy to knowingly transport stolen property in violation of 18 U.S.C. § 371); Count V (knowingly storing stolen property in violation of 18 U.S.C. § 2315); and Count VI (knowingly transporting stolen property in violation of 18 U.S.C. § 2314). The jury returned a verdict of guilty on Count II and Count V and not guilty on Count VI, and the court sentenced Baykowski to a total of twelve years imprisonment and fined him $10,000.00.
On appeal Baykowski argues that the trial court erred in (1) admitting a statement of a coconspirator in violation of standards set forth in United States v. Bell, 573 F.2d 1040 (8th Cir. 1978); (2) admitting evidence of prior crimes; and (3) denying his motions for judgment of acquittal. We affirm.
I
This case arises out of an alleged conspiracy to steal, transport and then sell over one million dollars worth of personal property. According to the government, from February, 1977 through December, 1977 a series of robberies took place in Jackson, Mississippi and surrounding areas. Because of the striking similarity of these robberies in terms of the time and mode of entry, property taken as well as ignored, and the condition of the dwellings following the break-ins, it is the theory of the government that these robberies were committed by the same person or group of persons. The government further theorizes that the goods acquired in the Mississippi robberies were subsequently transported and sold in and around St. Louis and that defendant Baykowski was connected with the conspiracy and knowingly transported and stored the stolen property. There was, however, no direct evidence proving Baykowski’s participation in this scheme and thus the government at trial focused to a large degree on establishing through circumstantial evidence that Baykowski did in fact commit the criminal acts in question.
The government first attempted to tie Baykowski to the conspiracy through the testimony of two desk clerks who worked at the Ramada Inn in Jackson, Mississippi. Both desk clerks testified that they recalled having seen the defendant Baykowski during the latter part of 1977 at the Jackson, Mississippi Ramada Inn. But other than their recollection that Baykowski was in Mississippi in the fall of 1977, neither clerk could offer other information which might connect Baykowski to the Jackson, Mississippi robberies.
The government additionally tried to show Baykowski’s involvement in the conspiracy and knowing participation in the scheme through the revelation that property taken from Mississippi was found in Baykowski’s van following his arrest.
Baykowski was arrested after the FBI set up a surveillance on December 14, 1977 at the Wood Hollow Apartments, a location where an FBI undercover agent, Donald H. Taylor, had previously purchased some stolen property traced to Mississippi ownership. Shortly after the surveillance began, the agents spotted one of the alleged coconspirators, Norman Owens, pulling into the apartment complex with a small U-Haul trailer attached to his car. In addition, a dark blue Ford Econoline van (the Baykowski van) also pulled into the complex. The two vehicles were parked next to each other and had been backed in towards an apartment. Eventually three men began unloading property from the U-Haul trailer. The FBI agents tried to arrest them but the three men ran into a nearby apartment, locked the door and closed the curtains. Some time later they escaped from the apartment complex undetected by the agents.
But after approximately twenty minutes an FBI agent saw two men at Denny’s Restaurant who resembled the two men who were helping Owens unload the U— Haul trailer at the apartment complex. The two men were Paul Baykowski and William Politte.
After arresting the men, the FBI agent searched the arrestees and discovered that Baykowski had on his person a set of keys. Later that night another FBI agent took the keys back to the Wood Hollow Apartments and found that one of the keys fit the van parked next to the U-Haul trailer. The agent inventoried the items in the van pursuant to a search warrant and discovered two large carpets and some chandeliers. The two large carpets in the van were stolen in Jackson, Mississippi on December 12, 1977. The agents also inventoried the goods in the Owens car and attached U-Haul as well as in the apartment, and many of these items were also traced to owners in Mississippi.
The government finally tried to establish Baykowski’s participation in the scheme through an out-of-court statement by co-conspirator Linda Fay Owens. This statement was directed to an undercover agent, Donald H. Taylor, after he had made numerous contacts with coconspirators Norman Owens and Raymond Bryan. Through these meetings, Taylor began to learn of the nature and scope of the conspiracy, as well as the identity of the coconspirators.
As early as September 19, 1977 Taylor was apprised of the fact that Raymond Bryan worked with one Norman Owens and that Owens in turn worked with a group of partners. Later, Taylor partially verified the names of these other participants in a meeting on December 20, 1977 with coconspirator Linda Fay Owens. At this meeting Taylor apparently wanted to buy some additional stolen merchandise from Norman Owens. Mrs. Owens, however, informed Taylor that her husband was not at home because his partners had been arrested. She also told Taylor that her husband’s partners were Paul and Bill. This was the first time Paul Baykowski’s name, or, for that matter, Bill Politte’s name, had been mentioned to FBI Agent Taylor by a coconspirator.
Following the close of the government’s case, Baykowski attempted to refute his seeming involvement in the scheme. Baykowski first tried to discredit the testimony of the two desk clerks from the Ramada Inn in Jackson, Mississippi who testified that they had seen Baykowski in Mississippi during the fall of 1977. Baykowski presented a number of witnesses including his wife, employer, and friend who testified that the defendant had remained in Granite City, Illinois (near St. Louis) for various periods of time in the latter part of 1977. Furthermore, Baykowski himself testified that he had never been to Mississippi.
Baykowski additionally tried to show that he was unaware of the conspiracy or of his participation in criminal activities. Baykowski testified that Bill Politte had called him on December 14 asking him to help move some items and that he agreed to help out. Baykowski stated, however, that at the time he moved the items from the U-Haul trailer to the van he did not know the goods were stolen. Although Baykowski conceded that he ran when the FBI agents appeared at the apartment complex, he asserted that the reason he ran along with the other coconspirators was because he had previously served time in prison.
Despite Baykowski’s testimony, the jury found him guilty of conspiracy to knowingly transport and store stolen property and knowingly storing stolen property.
II
On appeal Baykowski first claims that the district court erred by failing to follow United States v. Bell, supra, in determining the admissibility of an out-of-court declaration by an alleged coconspirator. Appellant notes that under Bell “an out-of-court statement is not hearsay and is admissible if on the independent evidence the district court is satisfied that it is more likely than not that the statement was made during the course and in furtherance of an illegal association to which the declarant and the defendant were parties.” Id. at 1044. In addition, appellant points out that Bell describes certain procedural steps which should be utilized in determining the admissibility of a coconspirator’s statement. Baykowski contends that the district court incorrectly applied both the procedural guidelines and substantive test enunciated in Bell. We do not agree.
We turn first to appellant’s “substantive” argument that the government did not adduce sufficient independent evidence that defendant was a member of a conspiracy to allow the admission of the out-of-court statement by Linda Fay Owens that her husband’s partners were Paul and Bill. Appellant asserts that the only independent evidence that the government offered showing Baykowski’s involvement in the conspiracy were the identification of the two hotel clerks from the Ramada Inn in Jackson, Mississippi and the testimony of FBI agents as to Baykowski’s activities on the date of his arrest. Noting that the statement of Linda Fay Owens cannot be considered in determining the admissibility of a coconspirator’s out-of-court statement, appellant complains that the independent evidence was insufficient to show by a preponderance his participation in the conspiracy.
We are unpersuaded by appellant’s argument and believe that substantial independent evidence was introduced by the government proving by a preponderance of the evidence defendant’s participation in the conspiracy. United States v. Milham, 590 F.2d 717, 723 (8th Cir. 1979). Most convincing is the fact that defendant Baykowski was arrested on December 14 while assisting conspirator William Politte and at the time of his arrest had on his person a key which fit the van from which several stolen items from Mississippi were recovered. Furthermore, employees at the Ramada Inn in Jackson, Mississippi testified that they had seen Baykowski at the Inn during the fall of 1977. We thus conclude that the district court properly determined that the government had proven by a preponderance of independent evidence that defendant participated in the conspiracy and that the statement was made in the course and in furtherance of the conspiracy.
We are also unconvinced by appellant’s argument that the district court committed reversible error in applying Bell’s procedural guidelines. Appellant argues that the district court failed to follow the Bell guidelines in two ways. First, appellant contends that under Bell the trial judge is to determine at the conclusion of all the evidence whether the government proved by a preponderance of the evidence that the statement was made by a coconspirator during the course and in furtherance of a conspiracy. Because the trial judge in the present case made this determination at the close of the government’s case in chief, appellant argues that the district court’s procedure did not comport with Bell and requires reversal. Appellant further claims that the trial judge erred in not providing an appropriate instruction as required by Bell cautioning the jury with regard to the weight and credibility to be accorded a co-conspirator’s statement.
The procedural guidelines enunciated in Bell are “flexible and not infallible.” United States v. Littlefield, 594 F.2d 682, 686 (8th Cir. 1979). If, as in this case, the trial court did in fact comply with the substance of the procedural guidelines, we believe that a slight deviation which does not affect the substantial rights of the parties should not constitute grounds for reversal. Fed.R.Civ.P. 61. With these standards in mind, we turn to examine appellant’s contention of error under the Bell procedural guidelines.
As to appellant’s contention that the trial court erred in determining the admissibility of the coconspirator’s statement at the close of the government’s case in chief instead of at the close of all evidence, we observe that the trial court did substantially comply with the Bell procedure. In accordance with Bell, the district court conditionally admitted the declaration of the alleged coconspirator after timely and appropriate objection by the defense and cautioned the parties after excusing the jurors that the government was required to prove by a preponderance of independent evidence that the statement was made by the coconspirator during the course and in furtherance of the conspiracy. Although the court did not precisely follow Bell in determining at the end of the government’s case if the coconspirator’s statement should be admitted, we believe that this error did not affect the substantial rights of the parties. We note that defendant could have objected to the court’s determination of admissibility of the coconspirator’s statement at the close of all the evidence, and the court undoubtedly would have reconsidered the question of admissibility. The defendant, however, chose not to exercise this option.
We also are not convinced that the district court’s failure to follow the Bell procedural guidelines of providing an instruction cautioning the jurors about the weight and credibility to be accorded a co-conspirator’s statement after admitting the out-of-court declaration under Fed.R.Evi. 801(d)(2)(E) constituted reversible error.
Although we do not approve of the trial court’s failure to follow this procedural guideline established in Bell, we note that the defendant did not object to the jury instruction at trial. When an appellant raises an objection as to jury instructions for the first time on appeal, this court has held in accord with Fed.R.Crim.P. 30 that the “objection comes too late to preserve the alleged error on appeal,” Kropp v. Ziebarth, 601 F.2d 1348, 1355 (8th Cir. 1979), unless the error affected the substantial rights of the parties and thus constitutes plain error. Fed.R.Crim.P. 52(b); United States v. Robinson, 539 F.2d 1181 (8th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977). Since the trial judge did provide a general cautionary instruction, we are unwilling to hold that the district court’s failure to follow the Bell procedural guideline amounted to plain error necessitating a reversal.
Ill
Appellant’s next argument is that the trial court erred in admitting certain testimony of detective James McMillan of the Jackson, Mississippi Police Department regarding the pattern of break-ins in Jackson, Mississippi and surrounding areas because this evidence of prior crimes or acts was used to show appellant’s character and that he acted in conformity with his character.
The argument has no merit. Although Federal Rule of Evidence 404(b) provides that evidence of prior crimes or acts is not admissible to prove the bad character of the defendant, such evidence may be admitted for other purposes such as proof of notice, identity, a common scheme, United States v. Goehring, 585 F.2d 371 (8th Cir. 1979), or proof of an element of the crime. United States v. Etley, 574 F.2d 850 (5th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978).
In the present case, the evidence was clearly used to show a common scheme — that the items stolen in Mississippi were transported through interstate commerce to Missouri and Illinois — as well as to prove elements of various counts of the indictment. Thus, the evidence was clearly admissible under the Federal Rules of Evidence.
IV
Appellant finally argues that the government did not prove beyond a reasonable doubt that he was a knowing and willing member of a conspiracy.
Again, we are unpersuaded. In reviewing a jury’s findings of guilt in a criminal case, we are required to consider the evidence in the light most favorable to the government and accept as established all reasonable inferences to support the conviction. United States v. Rich, 518 F.2d 980 (8th Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976). So considered, we believe that the government carried its burden.
We have noted that two desk clerks at the Ramada Inn in Jackson, Mississippi testified that the defendant had been in Jackson, Mississippi at the time of a number of break-ins and that appellant was arrested while helping other conspirators unload stolen property from the Baykowski van. Taking this evidence along with the other evidence proffered by the government, in the light most favorable to the appellee, we are convinced that the jury was fully warranted in finding beyond a reasonable doubt that the defendant was a knowing and willing member of the conspiracy to transport and to store stolen property and that he was guilty as charged.
Affirmed.
. More specifically, Baykowski was sentenced to a four year prison term on Count II and an eight year prison term on Count V to run consecutively. Baykowski was also fined $5,000.00 on each count for a total of $10,-000.00.
. The van apparently was owned by Baykowski’s wife, Barbara Baykowski. Defendant Baykowski, however, was driving the van on the day of his arrest.
. Although the First Circuit has recently suggested in dictum that a trial judge may consider the out-of-court statement itself in determining its admissibility under Federal Rule of Evidence 104(b), United States v. Martorano, 557 F.2d 1, 11-12 (1st Cir. 1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978), this court has adhered to the requirement that the trial court only consider independent evidence of the conspiracy. See, e. g., United States v. Macklin, 573 F.2d 1046 (8th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978).
. The trial judge stated:
You are the sole judge of the credibility of the witnesses and of the weight and value to be given to their testimony, as well as to all of the evidence and facts and circumstances which have been presented in this trial. In weighing, analyzing and reconciling the testimony, you should consider the demeanor and manner of the witness, his candor and attitude on the witness stand, his interest or lack of interest in the case and its outcome, the relationship he may bear to any of the parties to the case, the means of knowledge or lack of knowledge of the facts about which such witness testifies and his opportunity to know such facts, the reasonableness of the witness’s testimony and its probability or improbability, and the extent to which such witness has been corroborated or contradicted, if at all, by other credible evidence.
. Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_genresp1 | H | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
In the Matter of UNITED STATES OVERSEAS AIRLINES, INC., a Delaware Corporation, Bankrupt. United States Overseas Airlines, Inc., Bankrupt, Appellant.
No. 18025.
United States Court of Appeals Third Circuit.
Argued Nov. 17, 1969.
Decided Dec. 19, 1969.
Clarence P. Reberkenny, Hyland, Davis & Reberkenny, Cherry Hill, N. J., for United States Overseas Airlines.
William M. Balliette, Jr., Cafiero & Balliette, Wildwood, N. J. (James S. Cafiero, Wildwood, N. J., on the brief), for Joseph Tenenbaum, Trustee in Bankruptcy.
Before HASTIE, Chief Judge, and VAN DUSEN and ADAMS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM.
This is an appeal by a bankrupt corporation from an order of the district court confirming an order in which the referee had confirmed the sale of the bankrupt’s corporate trade name and the bankrupt’s revoked certificate to operate as a supplemental air carrier to a purchaser for $5,000.
It is not contended that the sale price was inadequate. All of the tangible assets of the bankrupt had been sold before the presently challenged sale.
In dismissing the bankrupt’s petition for review, the district court reasoned that:
“[u]nder Section 39c of the Bankruptcy Act, only a ‘person aggrieved’ can petition for review of a Referee’s order. A ‘Person Aggrieved’ is one who is directly and adversely affected pecuniarily by the order. Hartman Corp. of America v. United States, 304 F.2d 429 (8 Cir. 1962); In re Henry Wood Sons Co., 279 Fed. 608 (D.C. Mass.1922). In any event, real value was realized by the trustee for the benefit of the creditors, and the bankrupt may not petition for review where fair value is exchanged for the asset, if it be one, of only a skeletal charter and a dormant right of purchase. Of course, a grossly inadequate bid is quite another matter. The argument of the petitioner is that the trustee had no assets to sell in this regard. If that is so, then only the purchaser has been harmed by his speculation. If the bankrupt corporation had inherent rights in these intangible property rights, then the trustee’s duty under the Act was to sell, and this is precisely what he did.”
We agree with the district court that the bankrupt was not “aggrieved,” within the meaning of the Bankruptcy Act, by the sale it is attempting to challenge.
The judgment will be affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_jurisdiction | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Plaintiff-Appellee, v. Ben G. MILTON, d/b/a Service Check Company, Defendant-Appellant.
No. 17197.
United States Court of Appeals Sixth Circuit.
Decided Sept. 15, 1967.
Adrian B. Fink, Jr., Cleveland, Ohio, for appellant.
Joseph Kovner, Tax Division, Dept, of Justice, Washington, D. C., for appellee. Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Lawrence B. Silver, Attys., Dept, of Justice, Washington, D. C., on the brief. Merle M. McCurdy, U. S. Atty., Bernard J. Stuplinski, Asst. U. S. Atty., Cleveland, Ohio, of counsel.
Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.
PER CURIAM.
This is an appeal from a decision of the District Court determining that the United States, as holder of money orders issued by appellant in the amount of $7300.00, was entitled to recover this amount from appellant. The opinion of the District Court, reported at 253 F. Supp. 89, recites the facts as stipulated by the parties and therefore we do not repeat them here.
Appellant claims that the United States failed to follow Ohio procedures in perfecting its lien on the money orders and unauthorizedly named itself payee, and therefore cannot be regarded as a holder of the instruments. Further, appellant contends that he properly stopped payment of the money orders. Finally, he contends that the return of $7300.00 to Birns constituted payment of the money orders, and therefore serves as a defense to the claim of the United States.
For the reasons stated in the District Court’s conclusions of law, we find that the United States was properly in possession of the money orders and that it had authority to name the payee. Burke v. Jenkins, 128 Ohio St. 86, 190 N.E. 238 (1934) and Hartington National Bank v. Breslin, 88 Neb. 47, 128 N.W. 659, 31 L.R.A.,N.S., 130 (1910), the two cases cited by appellant in support of the proposition that a negotiable instrument can be enforced against the maker or drawer thereof only if blanks are filled in strict accordance with the authority given, are distinguishable from the instant ease. In both those cases, the maker of the instrument had intended that a specific payee be named. In this case, appellant did not require that the name of any particular person be filled in as payee. Since the United States was in possession of the money orders and was named therein as payee, it was a holder under the Ohio law then applicable. O.R.C. § 1301.01 (T).
The District Court held that appellant had no right to stop payment on the money orders, and that his attempt to stop payment could therefore not defeat the claim of the United States. As appellant points out, it is the general rule that a cashier’s check or money order drawn by a bank upon its own funds cannot be stopped, but there is a split of authority as to whether payment on a draft drawn by one bank upon another can be stopped. 107 Á.L.R. 1463. The money orders in the instant case were drawn by appellant upon the First National Bank of Akron, and appellant argues that payment could therefore be stopped. It must be recognized, however, that the question of whether a drawer can stop a drawee from paying an instrument is distinct from the question of whether the drawer can avoid his own obligation under the instrument. See International Firearms Co., Ltd. v. Kingston Trust Co., 6 N.Y.2d 406, 189 N.Y.S.2d 911, 160 N.E.2d 656 (1959); 107 A.L.R. 1463, 1467. Regardless of appellant’s power to stop the First National Bank of Akron from paying the United States, he was obligated to make such payment unless he had available a defense good against a holder. See Cross v. Exchange Bank Co., 110 Ohio App. 219, 168 N.E.2d 910 (1958); O.R.C. § 1301.64.
Appellant suggests that he does have a defense against the claim of the United States, namely that in returning $7300 to Birns he paid the money orders and thereby discharged his obligation. Birns, however, was not the holder of the money orders at the time this payment was made, and the payment of this money could therefore not discharge appellant’s obligation. O.R.C. §§ 1301.34, 1301.86.
The judgment of the District Court is affirmed.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_typeiss | C | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Thelma J. LAW, Administratrix of the Estate of William C. Yaggi, Deceased, Appellant, v. John CONVERSE, a minor, by his guardian, James Converse.
No. 17930.
United States Court of Appeals Third Circuit.
Argued Oct. 21, 1969.
Decided Nov. 25, 1969.
John P. Campana, Campana & Campana, Williamsport, Pa. (Michael J. Casale, Williamsport, Pa., on the brief), for appellant.
John C. Gault, Candor, Youngman, Gibson & Gault, Williamsport, Pa., for appellee.
Before KALODNER, STALEY and FREEDMAN, Circuit Judges.
OPINION OF THE COURT
FREEDMAN, Circuit Judge.
In this wrongful death and survival action, plaintiff, the administratrix of the estate of a decedent who was killed in an automobile accident, seeks on two grounds to overthrow the jury’s verdict against her. Both contentions have a seeming logic but are based on an ingenuous literalness which requires their rejection.
I.
Plaintiff’s counsel said to the jury in the course of his reply summation: “The Court will tell you that negligence on the part of the plaintiff, no matter how slight, will bar recovery. However, you, as jurors, have a right to compromise — .” On defendant’s objection, a sidebar discussion followed, in the course of which plaintiff’s counsel contended that he. should be permitted to tell the jurors that although the rule of law in Pennsylvania was that any negligence by the plaintiff, however slight, bars recovery, they nevertheless had a right despite this rule to award a compromise verdict. The trial judge refused to permit this and later instructed the jury on the Pennsylvania law by which contributory negligence, however slight, bars a plaintiff’s recovery.
In the course of its deliberations, the jury sent a note to the court stating: “Certain members of the jury feel that with all the evidence presented we can not give a verdict either way. We feel that both parties are negligent but can not shoulder either party with full guilt.” The record does not disclose whether the trial judge made any comment on this note. In any event, the jury continued its deliberations and some time later returned with a unani'mous verdict for the defendant, on which judgment was entered. Plaintiff moved for a new trial, assigning as the sole ground the trial judge’s refusal to permit counsel’s argument to the jury regarding compromise verdicts.
While the motion for new trial was pending our decisions in McSparran v. Weist, 402 F.2d 867 (3 Cir.1968) and Esposito v. Emery, 402 F.2d 878 (3 Cir. 1968) were announced. Plaintiff thereupon filed a motion to dismiss the action on the ground that her appointment as administratrix was solely to “manufacture” a diverse citizenship for the purpose of bringing the action in the federal court and that the pending case, therefore, should be dismissed for want of jurisdiction.
The district court denied both motions and from its order plaintiff has taken this appeal.
II.
Plaintiff would have us ignore the jury’s verdict and the judgment which decided the wrongful death and survival claims against her on the merits, and thus afford her the opportunity to try afresh in the state courts the survival claim which is not barred by the statute of limitations. To justify this disregard of the judgment against her on the merits she points to a phrase in our language in McSparran dealing with its retrospective effect. We there declared that the new rule barring “manufactured” diversity was to be generally prospective, saying:
“We recognize that many actions are now pending in the courts of this circuit in reliance on our earlier decisions. In many of these actions the statute of limitations may already bar the institution of new suits in the state courts, although in some of them protective state court actions may have been filed. To apply the rule we have here announced to all pending and future actions indiscriminately would work great hardship on those who have relied on our prior recognition of artificial diversity jurisdiction. It is therefore appropriate to declare the new rule to be prospective.” (402 F.2d at 876-877.)
We went on to permit a limited retrospective application of the rule, saying:
“In cases involving causes of action which arose prior to [the date of the filing of our opinion], including cases now pending, a district court shall apply the new rule against artificially created diversity, either on motion of a party or sua sponte, if it is conceded
by the parties or the court finds as a fact that diversity was artificially created, but only where the court finds that in the circumstances of the particular case there is ample time and opportunity for the plaintiff to institute a new action in the state court and that no unreasonable burden will be imposed on the plaintiff by the dismissal of the federal action.” (402 F.2d at 877.)
This language permits retrospective application of McSparran in those cases in which the court finds that the plaintiff may still institute a new action in the state court and that “no unreasonable burden will be imposed on the plaintiff by the dismissal of the federal action.” The argument therefore is made that the district court was bound to dismiss the action because plaintiff thereby will be benefited rather than injured, regardless of the effect on the defendant or on the administration of justice.
It is true indeed that plaintiff would benefit if the jury’s decision absolving defendant of liability were cast aside and plaintiff were now afforded the chance of another trial, even if only on the survival claim. But to restrict the inquiry to prejudice against the plaintiff would distort by a one-sided view the principle to which McSparran gave expression. McSparran and Esposito alike dealt with our unwillingness to permit the new rule to be applied retrospectively in circumstances which would make it seriously unjust or inequitable. In both cases, the problem of the statute of limitations, which adversely affects only the plaintiff, was acutely focused before us. In McSparran, where the statute of limitations was soon to expire and no other equitable considerations were involved, we pointed out that there was still time to bring a new suit in the state court and affirmed the judgment of dismissal. In Esposito, where the statute had already run, we declared that “it would be harsh to apply our new rule retrospectively to a case such as this, in which the plaintiff’s rights would be lost because the statute of limitations bars the institution of a new suit in the state' court. We therefore have considered the merits of the case.” (402 F.2d at 880.) Our reference to hardship and burden, therefore, was but illustrative and was not a definitive limitation of the cases of hardship or burden which would make seriously unjust or inequitable the retrospective application of the new rule of McSparran. While our prospective decision on jurisdiction necessarily was absolute, the determination of the extent to which it should be applied retrospectively required, as an equal necessity, a consideration of the circumstances of the particular case, to which an individual, equitable judgment was to be applied.
McSparran, therefore, may not be given the limited reading that its retrospective application is to be judged solely by the test whether the plaintiff will suffer an unreasonable burden or hardship from the dismissal of the federal action. Usually, of course, it is the plaintiff who resists dismissal of the action he has chosen to bring in the federal court, and the question of unreasonable burden or hardship therefore will usually be focused on him. But in its ultimate scope the retrospective application of McSparran must be limited to cases in which no serious hardship or burden will be imposed on either the plaintiff or defendant, or on the administration of justice. Our consideration in McSparran of the question of an undue burden on a plaintiff does not mean that dismissal is proper in an unusual case in which a defendant, who normally gains from the dismissal of an action for want of jurisdiction, will instead be deprived of a decision already reached on the merits in his favor. Indeed, in McSparran we were dealing with cases still awaiting trial in the federal courts. Far removed from such cases is one like this, which has already been tried and decided on the merits, even though at the time dismissal was sought the motion for new trial was pending and the possibility of appeal had not yet been exhausted.
We conclude, therefore, that it would have been improper for the district court to destroy a fully effectuated adjudicative process by a retrospective application of the new rule of Mc-Sparran, a rule which does not touch the merits yielded by the adjudicative process. The district court rightly denied plaintiff’s motion to dismiss her action after she had tried and lost her claims before the jury.
III.
Plaintiff’s counsel earnestly contends that it was error to forbid him to inform the jury of its right to render a compromise verdict even if it found the decedent contributorily negligent. To justify this claim plaintiff’s counsel points to the Pennsylvania decisions which have sustained compromise verdicts. From this he argues that a jury has a right to reach a compromise verdict and therefore may be told this as a principle of law which is relevant to guide it in its deliberations.
A fundamental misapprehension underlies this argument. The Pennsylvania decisions approving compromise verdicts have dealt with cases where the trial court refused to award a new trial on plaintiff’s claim of inadequacy of the verdict. Such verdicts were rendered by a jury which received correct instructions from the court on the Pennsylvania law of contributory negligence. In sustaining such action by the trial court in the leading case of Carpenelli v. Scranton Bus Co., 350 Pa. 184, 188, 38 A.2d 44, 46 (1944), Mr. Justice Horace Stern first emphasized the discretion of the trial court in the grant of a new trial, and its even broader discretion in the refusal of a new trial for inadequacy of the verdict. He then went on to say:
“[W]hen the evidence is equally divided in weight, or, a fortiori, when the preponderance of testimony is clearly with the defendant and the verdict rendered for the plaintiff, while small, is substantial, the problem becomes one of an entirely different nature [from the cases where the verdict is claimed to be excessive, or where liability is admitted], for in such event it can no more reasonably be said that the plaintiff recovered too little than that he should not have recovered at all; therefore, in such a case, it is just as likely, or more likely, that the granting of a new trial would constitute an act of injustice to the defendant rather than one of justice to the plaintiff.”
The Pennsylvania courts, therefore, have not sustained compromise verdicts because contributory negligence no longer bars a plaintiff from recovery, but rather because the verdict, even if small, was substantial and plaintiff in the circumstances of the case had no reason to complain. The eases on compromise verdicts cannot have been intended to establish by indirection the doctrine of comparative negligence which is the antithesis of Pennsylvania’s rule of contributory negligence. Such verdicts have been upheld only “when they have been substantial and where the evidence was conflicting or was not clear on the question of liability or of plaintiff’s contributory negligence.” If the evidence is clear and free from doubt, or if the verdict is not substantial, a compromise verdict will be set aside.
The manner in which a compromise verdict rendered by a jury is to be dealt with by the court on a post-trial motion is quite different from the rule of law which is to guide the jury in arriving at its verdict. For a trial judge to exercise his discretion to let a small but substantial verdict stand, rather than award a new trial on the ground of inadequacy, is far different from an instruction to the jury that it has court-approved authority to disregard the law of Pennsylvania in arriving at its verdict and to award damages to one who under the law is not entitled to recover. In harmony with the principle that the question of a compromise verdict is not to be injected into the jury’s deliberations is the early case of Boden v. Irwin, 92 Pa. 345 (1880), which held it error for a judge to charge the jury that the court would not set aside its verdict even if the jury announced a compromise verdict. Mr. Justice Paxson there said: “Juries are prone enough to disregard the evidence, and set up their own standard of right between the parties without a permission to do so from the court. The instruction complained of, left the jury to do as they pleased without regard to the evidence.” (p. 346.) Conversely, a recent case has indicated that it was error, after the jury had returned with an inconsistent verdict that both parties were negligent but the jury would award the amount of the doctor’s bill to the plaintiff, to instruct the jury that it should not compromise on any verdict. Robinson v. Brown, 195 Pa.Super. 384,171 A.2d 865 (1961).
The error which plaintiff makes is in the inversion of the post-trial acceptance of the verdict into an appropriate guide to the jury in arriving at its decision. Experience has shown that there are many elements which creep into a jury’s deliberations contrary to the principles which govern them, but which will not always require that their verdict be set aside. It is true that juries sometimes disobey the court’s instructions, or speculate on insurance coverage, or are swayed by sympathy or prejudice. The realistic acknowledgment that this is true does not, however, justify exalting the jury’s wayward action into a principle of law which is to be expounded to it in advance of its deliberations.
Some of the imperfections in the institution of trial by jury have even been excused as virtues because the jurors apply a worldly and practical interpretation to the law laid down for their guidance and so ameliorate the strictness of legal doctrine. But there can be no jus-j tifiable claim that because the disregard of the rules which bind a jury sometimes expresses a community sense of justice, a party therefore has the right to declare to a jury that it is its legal function to flout the law and disregard the judge. Instead of ameliorating the strictness of a rule of law in exceptional, appealing circumstances, the rule of law would be undermined and chaos established as the guiding principle.
What counsel sought to do here was to instruct the jury that despite the charge of the court that a plaintiff’s contributory negligence, however slight, bars his recovery, it could apply the contrary principle of comparative negligence. Such a drastic change in doctrine is for the Pennsylvania courts or its legislature to announce and not for counsel to insinuate into the deliberations of the jury. The district court properly rejected such an invasion of the trial judge’s function and such a disregard of the established law of Pennsylvania.
The order of the district court denying the motion for new trial and the motion to dismiss the action will be affirmed.
. Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957). See Schnars v. Union R. Co., 410 Pa. 538, 189 A.2d 884 (1963); Thompson v. Pennsylvania Power Co., 402 F.2d 88 (3 Cir. 1968).
. After the statute had expired on the wrongful death claim, plaintiff filed a timely action in the state court on the survival claim.
. Black v. Ritchey, 432 Pa. 366, 248 A.2d 771 (1966); Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959); Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955); Patterson, v. Palley Manufacturing Co., 360 Pa. 259, 61 A.2d 861 (1948); Carpenelli v. Scranton Bus Co., 350 Pa. 184, 38 A.2d 44 (1944); Rhoades v. Wolf, 207 Pa.Super. 104, 215 A.2d 332 (1965); Jackson v. Capello, 201 Pa.Super. 91, 191 A.2d 903 (1963); Hilscher v. Ickinger, 194 Pa.Super. 237, 166 A.2d 678 (1960); Padula v. Godshalk, 192 Pa.Super. 618, 161 A.2d 919 (1960); Simpkins v. Richey, 192 Pa.Super. 46, 159 A.2d 17 (1960); Ewing v. Marsh, 174 Pa.Super. 589, 101 A.2d 391 (1953).
See generally, Note, Jury Compromise in Pennsylvania Negligence Actions, 109 U.Pa.L.Rev. 732 (1961).
. See the cases cited supra, n. 3. In Elza v. Chovan, the Pennsylvania Supreme Court affirmed the Superior Court’s reversal of the trial court’s grant of a new trial for inadequacy of a verdict. See also Jackson v. Capello; Hilscher v. Ickinger.
. Carpenelli v. Scranton Bus Co., 350 Pa. 184, 190, 38 A.2d 44, 47 (1944).
. Black v. Ritchey, 432 Pa. 366, 248 A.2d 771 (1966) ; Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955).
. Black v. Ritchey, 432 Pa. 366, 369-370, 248 A.2d 771, 773 (1966).
. See Hose v. Hake, 412 Pa. 10, 192 A.2d 339 (1963); Walbert v. Farina, 411 Pa. 400, 192 A.2d 404 (1963); Krusinsky v. Chioda, 394 Pa. 90, 145 A.2d 681 (1958); Sharpe v. Steel, 205 Pa.Super. 95, 208 A.2d 43 (1965); Salemmo v. Dolan, 192 Pa.Super. 51, 159 A.2d 253 (1960); Cason v. Smith, 188 Pa.Super. 376, 146 A.2d 634 (1958). See also Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 192 A.2d 689 (1963) ; Gagliano v. Ditzler, 213 Pa. Super. 238, 247 A.2d 632 (1968) ; Rutter v. Morris, 212 Pa.Super. 466, 243 A.2d 140 (1968).
. There was other ground for reversal and award of a new trial.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
WELL SURVEYS, INC., now Dresser Systems, Inc. and Dresser Industries, Inc., Appellants, v. PERFO-LOG, INC., Appellee.
No. 9649.
United States Court of Appeals Tenth Circuit.
June 4, 1968.
Rufus S. Day, Jr., Cleveland, Ohio (Richard M. Donaldson, James A. Peabody, Oklahoma City, Okl., and Robert K. Schumacher, Chicago, Ill., on the brief), for appellants.
Welton B. Whann, Los Angeles, Cal. (W. D. Hart, Pauls Valley, Okl., on the brief), for appellee.
Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.
. McCullough Tool Co. v. Well Surveys, Inc., 10 Cir., 395 F.2d 230, opinion filed May 16, 1968.
BREITENSTEIN, Circuit Judge.
Appellant-plaintiff Well Surveys, Inc., sued appellee-defendant Perfo-Log, Inc., for infringement of the Swift Patent No. 2,554,844 and the Peterson Patent No. 2,967,994. Perfo-Log denies infringement and asserts patent misuse as a defense. The trial court granted summary judgment for Perfo-Log on the ground of misuse of the Swift patent.
This litigation is an episode in the prolonged controversy between WSI and McCullough Tool Co. over the Swift patent. In McCullough Tool Co. v. Well Surveys, Inc., 10 Cir., 343 F.2d 381, cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851, we upheld the validity of the Swift patent and said that WSI had purged itself of misuse in 1956 by the adoption of different licensing practices. WSI brought further proceedings against McCullough which have been disposed of in our recently filed opinion Nos. 9426 and 9427, McCullough Tool Co. v. Well Surveys, Inc. [McCullough Tool Co. v. Dresser Industries, Inc.] 395 F.2d 230. McCulIough is admittedly assisting Perfo-Log in the present suit.
The Swift patent covers a system of measuring radiation from the earth formations around a well casing and, at the same time, locating the collars of the casing as a positive indication of the depth at which particular radiation is measured. The expiration date of the Swift patent is May 29, 1968.
The Peterson patent relates to a type of collar locator which can be used with the Swift system. It expires January 10, 1978. Various other collar locators can be used for the same purpose as Peterson.
Perfo-Log moved for summary judgment on the ground that WSI had misused the Swift patent. The motion was originally supported by 8 immunity agreements given by WSI to various well loggers. Sixty-five other immunity agreements were later filed. In opposition WSI submitted several affidavits to which reference will be made later. At the conclusion of the argument on Perfo-Log’s motion, WSI requested permission to file a motion for partial summary judgment adjudicating the misuse issue in its favor. No objection was made and the court granted WSI permission to file.
The district court found that licensees under the immunity agreements could not terminate until after the expiration of the Swift patent; and that there was no provision for change in royalty base or for diminution in royalty after the expiration of the Swift patent. On the basis of these findings the court held that WSI had misused the Swift patent and granted the Perfo-Log motion for summary judgment. The WSI motion for partial summary judgment was denied.
The courts withhold aid to a party who has used his patent right contrary to the public interest. A patentee is not entitled to continue to receive “the benefit of an expired monopoly.” In our first McCullough decision we reviewed the principle of misuse and the package licensing of patents. We concluded that package licensing was not misuse in the absence of coercion and said:
“ * * * in order to constitute a misuse, there must be an element of coercion, such as where there has been a request by a prospective licensee for a license under less than all of the patents and a refusal by the licensor to grant such a license.”
In the second McCullough decision we considered claims that WSI had misused its patents through monopolization of the well-logging industry, improper extension of its patent monopoly, and unfounded infringement threats and litigation. We held that the showing made was insufficient to establish a change in the licensing practices which we approved in the first McCullough decision and rejected the claims of misuse.
With this background we come to the case at bar. Perfo-Log says that the licenses which it submitted in support of a summary judgment motion establish per se a misuse of the Swift patent. Prime reliance is had on eight agreements which covered both the Swift and the Peterson patents. These agreements were not terminable at the will of the licensee until the lapse of varying periods after the expiration of the Swift patent. The uniform royalty rate of 5% was not diminished after the expiration of Swift. The royalty provision reads thus:
“3.02 Company agrees to pay DII [WSI] as royalty on each Radioactivity Well Surveying operation conducted by Company, which, if unlicensed, would infringe the Patent Rights of DII [WSI] during the term of this agreement an amount equal to five per cent (5%) of the gross charge (exclusive of mileage) made for the survey so conducted or a sum of ten dollars
($10.00), whichever is greater.”
The literal language does not exact a royalty on an expired patent because payment is required only for operations which infringe a patent right of WSI. There can be no infringement of an expired patent.
Although the royalty rate does not change, the base for that rate changes because after the expiration of Swift, no royalty is payable unless the Peterson patent is used in the logging operations. The lack of diminution in royalty rate for the use of Peterson without Swift and the provisions for termination do not of themselves establish coercion. The question is whether the licensee was forced to enter into a package arrangement. Perfo-Log offered nothing on this point but relied on the agreements. WSI submitted the affidavits of two officers to show a continuation of the license practices approved in our first McCullough decision. One of the affidavits stated:
“Every prospective licensee was offered a license under any of the radioactivity well surveying patents of Dresser Industries, Inc. and/or Well Surveys, Inc. which it desired, individually or collectively, upon negotiated reasonable terms. No licensee or prospective licensee was ever coerced to pay royalty on or for any operations covered by any expired patent.”
To support its argument that the licenses per se establish patent misuse, Perfo-Log relies on the decision in Rocform Corp. v. Acitelli-Standard Concrete Wall, Inc., 6 Cir., 367 F.2d 678. That case concerned patents, one of which was of basic importance, for pouring concrete basement walls. The license agreement covered several patents and provided no royalty reduction after the expiration of the basic patent. The Sixth Circuit held that the lack of diminution in royalty and the absence of an appropriate termination clause established misuse. One judge dissented on the basis of our first McCullough decision. Id. at 682. In its statement of facts the Sixth Circuit said that Roeform offered to license only under its standard package agreement. In the case at bar, the affidavits submitted by WSI show a willingness to license any or all patents under reasonable, negotiated terms. If the Roeform decision is taken as holding that a package license, including both important and unimportant patents, is misuse per se when there is no diminution in royalty, or provision for termination, after the expiration of an important patent, we respectfully disagree and adhere to our decision in the first McCullough case. The relative importance of patents has no significance if a licensee is given the choice to take a patent alone or in combination on reasonable terms. Freedom of choice is the controlling question.
Perfo-Log argues that the district judge drew a permissible inference of misuse from the licenses and that under United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 92 L.Ed. 746, this inference is binding on the appellate court unless clearly erroneous. The difficulty is that the inference was drawn on a motion for summary judgment. In such a situation “the inferences to be drawn from the underlying facts * * * must be viewed in the light most favorable to the party opposing the motion.” Here the inference runs contrary to the uncontroverted showing by WSI that it offered to license any or all of its patents on reasonable, negotiated terms. In such circumstances the inference is not controlling. At the most it establishes a genuine issue as to a material fact and, under the provisions of Rule 56(c), F.R. Civ.P., precludes the grant of a summary judgment.
WSI urges that summary judgment on the misuse issue should have been given in its favor. Although we are convinced that the showing by WSI’s affidavit of readiness to license any or all of its patents on reasonable terms is sufficient to defeat the Perfo-Log motion for summary judgment, we cannot say that such showing entitles WSI to the relief it seeks. The fact finder must weigh the provisions of the license agreements against the facts surrounding the grant of those licenses. In our opinion this is not a case for the use of the summary judgment procedure.
The judgment is reversed and the case is remanded for trial on the merits.
. Well Surveys, Inc., the original plaintiff, has changed its name to Dresser Systems, Inc., and has transferred the patents involved herein to its parent corporation, Dresser Industries, Inc. Herein the plaintiffs will be referred to as WSI.
. Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 492, 62 S.Ct. 402, 86 L.Ed. 363.
. See Scott Paper Co. v. Marcalus Manufacturing Co., 326 U.S. 249, 257, 66 S. Ct. 101, 105, 90 L.Ed. 47.
. McCullough Tool Co. v. Well Surveys, Inc., 10 Cir., 343 F.2a 381, 408, cert. denied 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed. 2d 851.
. Atlas-Pacific Engineering Co. v. Geo. W. Ashlock Co., 9 Cir., 339 F.2d 288, 289, note 1, cert. denied 382 U.S. 842, 86 S.Ct. 55, 15 L.Ed.2d 83.
. We find nothing in Hazeltine Research, Inc. v. Zenith Radio Corp., 7 Cir., 388 F.2d 25, that conflicts with our conclusions. It is there recognized that economic coercion must be shown.
. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176. See also Frey v. Frankel, 10 Cir., 361 F.2d 437, 442.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_geniss | F | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
CLEVELAND PAPER HANDLERS AND SHEET STRAIGHTENERS UNION NO. 11 OF the INTERNATIONAL PRINTING AND GRAPHIC COMMUNICATIONS UNION, Plaintiff-Appellee, v. E. W. SCRIPPS COMPANY, Publisher of the Cleveland Press and the Plain Dealer Publishing Company, Defendants-Appellants.
No. 80-3758.
United States Court of Appeals, Sixth Circuit.
Argued April 19, 1982.
Decided June 18, 1982.
Don H. Pace, Elliot S. Azoff, Baker & Hostetler, Cleveland, Ohio, for defendants-appellants.
Stanley D. Gottsegen, Robert S. Stone, Burke, Haber & Berick, Cleveland, Ohio, for plaintiff-appellee.
Before ENGEL and KENNEDY, Circuit Judges, and ENSLEN, District Judge.
The Honorable Richard A. Enslen, Judge, U. S. District Court for the Western District of Michigan, sitting by designation.
PER CURIAM.
Appellants, The Plain Dealer Publishing Company and the E. W. Scripps Publishing Company, appeal the decision by the District Court for the Northern District of Ohio enforcing an arbitration award.
Appellee Cleveland Paper Handlers and Sheet Straighteners Union No. 11 of the International Printing and Graphic Communications Union (Union) is a party to separate collective bargaining agreements with appellants, newspaper publishers in Cleveland, Ohio. The appellants belong to the Cleveland Newspaper Publishers Association which acted as their joint negotiator and the two contracts are nearly identical. The contracts contain minimum manning provisions that specify the minimum number of members of the collective bargaining unit that must be employed if appellants’ publishing plants are in operation. The contracts also contain manning schedules, which specify the number of bargaining unit employees required to perform each of several tasks. The contracts require that any dispute between the parties shall be submitted to final and binding arbitration. In addition, the Union’s contract with The Plain Dealer contains a side letter stating that paperhandlers on the unloading crew not needed for unloading may be assigned to do any other paperhandler work. These provisions of the collective bargaining agreement have been the subject of several arbitrations and a pair of lawsuits.
The job classifications in the bargaining unit include “core unwinders,” “balers,” “platemen,” “warehouse crew,” etc. The manning schedule requires E. W. Scripps to man the baler with two members of the bargaining unit and to man the core unwin-der with one. The Plain Dealer has consolidated the two operations, so is required to employ three members of the bargaining unit to perform both jobs together. In early 1977 Arbitrator Teple ruled that appellants had power under the bargaining agreement to transfer persons from one job classification to temporarily relieve persons in another classification.
The three baler and core unwinder employees at E. W. Scripps consistently finished their work well before the end of their shift, so the publisher consolidated its operations by eliminating two of the baler/core unwinder positions. Scripps thereafter assigned one person to do baling and core unwinding full time, supplemented as necessary by employees temporarily transferred from other positions within the bargaining unit. The Union objected and the case went to Arbitrator Ipavec.
Arbitrator Ipavec ruled that Scripps was not required to employ any persons to run the baler and core unwinder during shifts when those machines were not scheduled to be operated, but was required to use three bargaining unit employees to run them for each shift they were scheduled to operate, in accordance with the manning schedule. He did not specifically address the propriety of manning the baler and core unwinder with employees transferred from other classifications when the machines were scheduled to operate for only part of a shift, although this was a part of Scripps’ manning policy. Arbitrator Ipavec also ruled that while the manning practices he addressed were proper, any layoff prior to his award was premature. He assessed damages for the premature layoff.
Scripps chose to construe this ruling together with the Teple ruling to mean that it could continue temporarily to transfer other bargaining unit employees to perform baler and core unwinder jobs without scheduling anyone full time for those tasks so long as the machines were not scheduled full time. The Union protested, claiming that under the collective bargaining agreement if the baler and core unwinder were scheduled to be run on even part of a shift then three employees had to be scheduled to run them. The dispute went back to Arbitrator Ipavec, who issued his decision on October 18, 1979. The Plain Dealer agreed to join this arbitration and be bound by its results.
One stipulated issue was presented to Arbitrator Ipavec: “Must the Publisher hire men solely for the operation of the baler and core machines or can the Publisher re-assign men previously assigned to other duties to the operation of the baler and core machines?” The arbitrator found that a simple yes or no answer could not be given to this question. He observed that since his and Arbitrator Teple’s earlier decisions the collective bargaining agreement had been renegotiated, and neither the operative language of the agreement nor the terms of the arbitration awards had been changed. Thus, he concluded, those awards were now a part of the collective bargaining agreement itself, no longer subject to modification by another arbitrator. Because of the Teple award appellant had some rights to transfer employees assigned to one machine, so it clearly could not be forced to hire workers solely for the baler and core unwinder. Arbitrator Ipavec then ruled that the bargaining agreement required appellants to schedule the number of employees specified in the manning schedule for each operation that was to be functional on a shift. Thus, if appellants wished to schedule the baler and core unwinder they had also to schedule three bargaining unit employees to run those machines, although once scheduled those employees could be temporarily transferred, as necessary. Arbitrator Ipavec noted that as the case had been tried on a stipulated issue in which the question of damages was not raised, he did not have enough information to compute the damages for appellants’ improper manning procedures. He directed the parties to conduct further negotiations on the question of damages.
Appellants continued to take the position after this second Ipavec decision that they were only required to hire employees specifically for the core unwinder and baler machines if the machines were scheduled to run for a full shift, and continued to man the machines as they had prior to the arbitrator’s decision, transferring other full-time unit employees to operate the machines on a part-time basis as needed. The Union continued to argue that if the machines were scheduled for even a partial shift the arbitrator’s award required that three employees be scheduled for those operations for that shift. The parties apparently agreed at one time to ask Arbitrator Ipavec for further clarification, and he agreed to provide it. However, before the parties could reach agreement on the question to be submitted to the arbitrator the Union broke off further discussions and initiated this lawsuit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for confirmation of Arbitrator Ipa-vec’s second award and for damages.
Appellants moved to dismiss the complaint or to remand to the arbitrator for further clarification. The Union moved for summary judgment. On October 24, 1980 the District Judge denied appellants’ motion to dismiss and granted appellee’s motion for summary judgment. The judge concluded that there was no ambiguity in the arbitrator’s award and granted enforcement. The court also ordered the parties to compute damages.
Appellants raise three issues: Whether the District Court exceeded its authority by (1) construing an ambiguous arbitration decision; (2) interpreting the Plain Dealer’s contractual right to use its unloading crew for any paperhandling work not to permit the use of unloading crew in place of persons specifically scheduled for the baler and core unwinder under the Ipavec decision; and (3) ordering the parties to compute damages according to a specific formula.
The law is clear that federal courts have jurisdiction to enforce arbitration awards. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). It is also clear that the courts may not go beyond the arbitration award to decide questions that the arbitrator did not decide. Id. at 599, 80 S.Ct. at 1362. An ambiguous award may not be enforced but should be remanded to the arbitrator. Id. at 597-598, 80 S.Ct. at 1361. An ambiguity in the opinion accompanying the award will not alone provide a reason to deny enforcement. Id. at 598, 80 S.Ct. at 1361. If the arbitrator’s opinion and award, read together, are not ambiguous the award should be enforced. International Brotherhood of Electrical Workers, Local 369 v. Olin Corp., 471 F.2d 468 (6th Cir. 1972).
The District Court correctly held that the second Ipavec arbitration award was not ambiguous. Appellants argue that the award is ambiguous if it can be read to require appellants to hire bargaining unit employees to man the baler and core unwinder when those operations are not scheduled. The arbitrator’s opinion specifically states that appellants are required to hire men to operate the baler and core unwinder “on any shift that the employer contemplates making such operations functional.” The ambiguity appellants fear does not exist.
Appellants suggest that the first Ipavec award permits them to use other available paperhandlers to operate the baler and core unwinder, and the second award contradicts this if its requires them to hire people for the baler and core unwinder whenever those machines are scheduled. Appellants are incorrect about the holding of the first Ipavec decision, which did no more than say they were not required to employ persons to run the baler and core unwinder when those machines were not scheduled. It did not say appellants could transfer other workers to run those machines part-time in lieu of scheduling workers to run them. Although appellants apparently engaged in this practice prior to the first Ipavec award and the award does approve some of appellants’ manning practices, the award does not specifically mention this practice and deals only with the separate question whether appellants must schedule baler and core un-winder employees on all shifts, regardless of whether or not machines are to be run on a given shift.
Appellants note that the second award requires them to hire employees for any shift in which the baler and core unwinder are scheduled to be run. They claim this is ambiguous because it could mean either when the machines are scheduled to be run for a full shift, or when they are scheduled to be run at all. Appellants are attempting to create an ambiguity where none exists. The fact that the award does not specify that the machines must be scheduled for a full shift means that this is not a necessary condition to the requirement that employees be scheduled.
In the process of reaching its conclusion that the second award is not ambiguous the District Court stated that the side letter in the Plain Dealer contract did not create an ambiguity, but just meant that other unloading crew members could relieve on the baler and core unwinder should workers scheduled on those machines be transferred. Arbitrator Ipavec did not construe this side agreement and the District Court did not need to. The side letter could not make the arbitrator’s award ambiguous, no matter how construed. The District Court exceeded its authority by going beyond the arbitrator’s award to interpret it.
Arbitrator Ipavec directed the parties to “negotiate a monetary settlement which will properly compensate the bargaining unit and the affected employees for the loss of situations.” The District Court directed the parties to “compute the damages in the amount it would have cost [appellants] to man the baler and core unwinding machines with members of the bargaining unit employed for such jobs had [appellants] not changed their manning practices, from the date of the changes to the date of confirmation by this court.” The District Court again exceeded its authority by departing from the arbitrator’s general language to pick the date from which damages must be measured and to measure damages according to what it would have cost appellants to man the baler and core unwinder properly.
Those parts of the judgment construing the Plain Dealer side agreement and specifying a measure of damages are vacated. That portion of the District Court’s order of October 24, 1980 directing “E. W. Scripps Company Publisher of the Cleveland Press and the Plain Dealer Publishing Company, ... to begin hiring immediately, members of the bargaining unit specifically for the tasks of manning the baler and core unwinding machines whenever such machines are to be functional” is affirmed. Each party will bear its own costs.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
sc_certreason | L | 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.
BALTIMORE GAS & ELECTRIC CO. et al. v. NATURAL RESOURCES DEFENSE COUNCIL, INC.
No. 82-524.
Argued April 19, 1983
Decided June 6, 1983
O’CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the cases.
David A. Strauss argued the cause for petitioners in all cases. With him on the briefs for petitioners in No. 82-545 were Solicitor General Lee, Assistant Attorney General Dinkins, Deputy Solicitor General Claiborne, John H. Garvey, Jacques B. Gelin, and E. Leo Slaggie. Henry V. Nickel, F. William Brownell, and George C. Freeman, Jr., filed briefs for petitioners in No. 82-524. James P. McGranery, Jr., and Michael I. Miller filed briefs for petitioners in No. 82-551. Raymond M. Momboisse, Sam Kazman, Ronald A. Zumbrun, and Robert K. Best filed a brief for respondent Pacific Legal Foundation in support of petitioners.
Timothy B. Atkeson argued the cause for respondents in all cases and filed a brief for respondent Natural Resources Defense Council, Inc. Robert Abrams, Attorney General, Ezra I. Bialik, Assistant Attorney General, and Peter H. Schiff filed a brief for respondent State of New York.
Together with No. 82-545, United States Nuclear Regulatory Commission et al. v. Natural Resources Defense Council, Inc., et al.; and No. 82-551, Commonwealth Edison Co. et al. v. Natural Resources Defense Council, Inc., et al., also on certiorari to the same court.
Briefs of amicus curiae urging reversal were filed by Harold F. Reis and Linda L. Hodge for the Atomic Industrial Forum, Inc.; and by Wayne T. Elliott for Scientists and Engineers for Secure Energy, Inc.
Briefs of amici curiae urging affirmance were filed for the State of Minnesota by Hubert H. Humphrey III, Attorney General, and Jocelyn Furtwangler Olson, Special Assistant Attorney General; for the State of Wisconsin et al. by Bronson C. La Follette, Attorney General of Wisconsin, and Carl A. Sinderbrand, Assistant Attorney General; Robert T. Stephan, Attorney General of Kansas, and Robert Vinson Eye, Assistant Attorney General; William J. Guste, Jr., Attorney General of Louisiana; Joseph I. Lieberman, Attorney General of Connecticut; John J. Easton, Jr., Attorney General of Vermont, and Merideth Wright, Assistant Attorney General; John Ashcroft, Attorney General of Missouri, and Robert Lindholm, Assistant Attorney General; William M. Leech, Jr., Attorney General of Tennessee; Mark V. Meierhenry, Attorney General of South Dakota; Paul G. Bardacke, Attorney General of New Mexico; Tany S. Hong, Attorney General of Hawaii; Chauncey H. Browning, Jr., Attorney General of West Virginia, and Leonard Knee, Deputy Attorney General; A. G. McClintock, Attorney General of Wyoming; Jim Mattox, Attorney General of Texas, and David Richards, Executive Assistant Attorney General; Janice E. Kerr and J. Calvin Simpson; for Kansans for Sensible Energy by John M. Simpson; and for Limerick Ecology Action, Inc., et al. by Charles W. Elliott.
Justice O’Connor
delivered the opinion of the Court.
Section 102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U. S. C. §4332(2)(C) (NEPA), requires federal agencies to consider the environmental impact of any major federal action. As part of its generic rule-making proceedings to evaluate the environmental effects of the nuclear fuel cycle for nuclear powerplants, the Nuclear Regulatory Commission (Commission) decided that licensing boards should assume, for purposes of NEPA, that the permanent storage of certain nuclear wastes would have no significant environmental impact and thus should not affect the decision whether to license a particular nuclear power-plant. We conclude that the Commission complied with NEPA and that its decision is not arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U. S. C. §706.
The environmental impact of operating a light-water nuclear powerplant includes the effects of offsite activities necessary to provide fuel for the plant (“front end” activities), and of offsite activities necessary to dispose of the highly toxic and long-lived nuclear wastes generated by the plant (“back end” activities). The dispute in these cases concerns the Commission’s adoption of a series of generic rules to evaluate the environmental effects of a nuclear power-plant’s fuel cycle. At the heart of each rule is Table S-3, a numerical compilation of the estimated resources used and effluents released by fuel cycle activities supporting a year’s operation of a typical light-water reactor. The three versions of Table S-3 contained similar numerical values, although the supporting documentation has been amplified during the course of the proceedings.
The Commission first adopted Table S-3 in 1974, after extensive informal rulemaking proceedings. 39 Fed. Reg. 14188 et seq. (1974). This “original” rule, as it later came to be described, declared that in environmental reports and impact statements for individual licensing proceedings the environmental costs of the fuel cycle “shall be as set forth” in Table S-3 and that “[n]o further discussion of such environmental effects shall be required.” Id., at 14191. The original Table S-3 contained no numerical entry for the long-term environmental effects of storing solidified transuranic and high-level wastes, because the Commission staff believed that technology would be developed to isolate the wastes from the environment. The Commission and the parties have later termed this assumption of complete repository integrity as the “zero-release” assumption: the reasonableness of this assumption is at the core of the present controversy.
The Natural Resources Defense Council (NRDC), a respondent in the present cases, challenged the original rule and a license issued under the rule to the Vermont Yankee Nuclear Power Corp. The Court of Appeals for the District of Columbia Circuit affirmed Table S-3’s treatment of the “front end” of the fuel cycle, but vacated and remanded the portion of the rule relating to the “back end” because of perceived inadequacies in the rulemaking procedures. Natural Resources Defense Council, Inc. v. NRC, 178 U. S. App. D. C. 336, 547 F. 2d 633 (1976). Judge Tamm disagreed that the procedures were inadequate, but concurred on the ground that the record on waste storage was inadequate to support the zero-release assumption. Id., at 361, 547 F. 2d, at 658.
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), this Court unanimously reversed the Court of Appeals’ decision that the Commission had used inadequate procedures, finding that the Commission had done all that was required by NEPA and the APA and determining that courts generally lack the authority to impose “hybrid” procedures greater than those contemplated by the governing statutes. We remanded for review of whether the original rule was adequately supported by the administrative record, specifically stating that the court was free to agree or disagree with Judge Tamm’s conclusion that the rule pertaining to the “back end” of the fuel cycle was arbitrary and capricious within the meaning of § 10(e) of the APA, 5 U. S. C. § 706. Id., at 536, n. 14.
While Vermont Yankee was pending in this Court, the Commission proposed a new “interim” rulemaking proceeding to determine whether to adopt a revised Table S-3. The proposal explicitly acknowledged that the risks from long-term repository failure were uncertain, but suggested that research should resolve most of those uncertainties in the near future. 41 Fed. Reg. 45850-45851 (1976). After further proceedings, the Commission promulgated the interim rule in March 1977. Table S-3 now explicitly stated that solidified high-level and transuranic wastes would remain buried in a federal repository and therefore would have no effect on the environment. 42 Fed. Reg. 13807 (1977). Like its predecessor, the interim rule stated that “[n]o further discussion of such environmental effects shall be required.” Id., at 13806. The NRDC petitioned for review of the interim rule, challenging the zero-release assumption and faulting the Table S-3 rule for failing to consider the health, cumulative, and socioeconomic effects of the fuel cycle activities. The Court of Appeals stayed proceedings while awaiting this Court’s decision in Vermont Yankee. In April 1978, the Commission amended the interim rule to clarify that health effects were not covered by Table S-3 and could be litigated in individual licensing proceedings. 43 Fed. Reg. 15613 et seq. (1978).
In 1979, following further hearings, the Commission adopted the “final” Table S-3 rule. 44 Fed. Reg. 45362 et seq. (1979). Like the amended interim rule, the final rule expressly stated that Table S-3 should be supplemented in individual proceedings by evidence about the health, socioeconomic, and cumulative aspects of fuel cycle activities. The Commission also continued to adhere to the zero-release assumption that the solidified waste would not escape and harm the environment once the repository was sealed. It acknowledged that this assumption was uncertain because of the remote possibility that water might enter the repository, dissolve the radioactive materials, and transport them to the biosphere. Nevertheless, the Commission predicted that a bedded-salt repository would maintain its integrity, and found the evidence “tentative but favorable” that an appropriate site would be found. Id., at 45368. The Commission ultimately determined that any undue optimism in the assumption of appropriate selection and perfect performance of the repository is offset by the cautious assumption, reflected in other parts of the Table, that all radioactive gases in the spent fuel would escape during the initial 6- to 20-year period that the repository remained open, ibid., and thus did not significantly reduce the overall conservatism of Table S-3. Id., at 45369.
The Commission rejected the option of expressing the uncertainties in Table S-3 or permitting licensing boards, in performing the NEPA analysis for individual nuclear plants, to consider those uncertainties. It saw no advantage in reassessing the significance of the uncertainties in individual licensing proceedings:
“In view of the uncertainties noted regarding waste disposal, the question then arises whether these uncertainties can or should be reflected explicitly in the fuel cycle rule. The Commission has concluded that the rule should not be so modified. On the individual reactor licensing level, where the proceedings deal with fuel cycle issues only peripherally, the Commission sees no advantage in having licensing boards repeatedly weigh for themselves the effect of uncertainties on the selection of fuel cycle impacts for use in cost-benefit balancing. This is a generic question properly dealt with in the rule-making as part of choosing what impact values should go into the fuel cycle rule. The Commission concludes, having noted that uncertainties exist, that for the limited purpose of the fuel cycle rule it is reasonable to base impacts on the assumption which the Commission believes the probabilities favor, i. e., that bedded-salt repository sites can be found which will provide effective isolation of radioactive waste from the biosphere. ” Id., at 45369.
The NRDC and respondent State of New York petitioned for review of the final rule. The Court of Appeals consolidated these petitions for all purposes with the pending challenges to the initial and interim rules. By a divided panel, the court concluded that the Table S-3 rules were arbitrary and capricious and inconsistent with NEPA because the Commission had not factored the consideration of uncertainties surrounding the zero-release assumption into the licensing process in such a manner that the uncertainties could potentially affect the outcome of any decision to license a particular plant. Natural Resources Defense Council, Inc. v. NRC, 222 U. S. App. D. C. 9, 685 F. 2d 459 (1982). The court first reasoned that NEPA requires an agency to consider all significant environmental risks from its proposed action. If the zero-release assumption is taken as a, finding that long-term storage poses no significant environmental risk, which the court acknowledged may not have been the Commission’s intent, it found that the assumption represents a self-evident error in judgment and is thus arbitrary and capricious. As the evidence in the record reveals and the Commission itself acknowledged, the zero-release assumption is surrounded with uncertainty.
Alternatively, reasoned the Court of Appeals, the zero-release assumption could be characterized as a decision-making device whereby the Commission, rather than individual licensing boards, would have sole responsibility for considering the risk that long-lived wastes will not be disposed of with complete success. The court recognized that the Commission could use generic rulemaking to evaluate environmental costs common to all licensing decisions. Indeed, the Commission could use generic rulemaking to balance generic costs and benefits to produce a generic “net value.” These generic evaluations could then be considered together with case-specific costs and benefits in individual proceedings. The key requirement of NEPA, however, is that the agency consider and disclose the actual environmental effects in a manner that will ensure that the overall process, including both the generic rulemaking and the individual proceedings, brings those effects to bear on decisions to take particular actions that significantly affect the environment. The Court of Appeals concluded that the zero-release assumption was not in accordance with this NEPA requirement because the assumption prevented the uncertainties — which were not found to be insignificant or outweighed by other generic benefits — from affecting any individual licensing decision. Alternatively, by requiring that the licensing decision ignore factors that are relevant under NEPA, the zero-release assumption is a clear error in judgment and thus arbitrary and capricious.
We granted certiorari. 459 U. S. 1034 (1982). We reverse.
h-4 I — I
We are acutely aware that the extent to which this Nation should rely on nuclear power as a source of energy is an important and sensitive issue. Much of the debate focuses on whether development of nuclear generation facilities should proceed in the face of uncertainties about their long-term effects on the environment. Resolution of these fundamental policy questions lies, however, with Congress and the agencies to which Congress has delegated authority, as well as with state legislatures and, ultimately, the populace as a whole. Congress has assigned the courts only the limited, albeit important, task of reviewing agency action to determine whether the agency conformed with controlling statutes. As we emphasized in our earlier encounter with these very proceedings, “[administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute . . . , not simply because the court is unhappy with the result reached.” Vermont Yankee, 435 U. S., at 558.
The controlling statute at issue here is NEPA. NEPA has twin aims. First, it “places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.” Vermont Yankee, supra, at 553. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U. S. 139, 143 (1981). Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. See Stryckers’ Bay Neighborhood Council v. Karlen, 444 U. S. 223, 227 (1980) (per curiam). Rather, it required only that the agency take a “hard look” at the environmental consequences before taking a major action. See Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976). The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. See generally Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415-417 (1971).
In its Table S-3 rule here, the Commission has determined that the probabilities favor the zero-release assumption, because the Nation is likely to develop methods to store the wastes with no leakage to the environment. The NRDC did not challenge and the Court of Appeals did not decide the reasonableness of this determination, 222 U. S. App. D. C., at 28, n. 96, 685 F. 2d, at 478, n. 96, and no party seriously challenges it here. The Commission recognized, however, that the geological, chemical, physical, and other data it relied on in making this prediction were based, in part, on assumptions which involve substantial uncertainties. Again, no one suggests that the uncertainties are trivial or the potential effects insignificant if time proves the zero-release assumption to have been seriously wrong. After confronting the issue, though, the Commission has determined that the uncertainties concerning the development of nuclear waste storage facilities are not sufficient to affect the outcome of any individual licensing decision.
It is clear that the Commission, in making this determination, has made the careful consideration and disclosure required by NEPA. The sheer volume of proceedings before the Commission is impressive. Of far greater importance, the Commission’s Statement of Consideration announcing the final Table S-3 rule shows that it has digested this mass of material and disclosed all substantial risks. 44 Fed. Reg. 45367-45369 (1979). The Statement summarizes the major uncertainty of long-term storage in bedded-salt repositories, which is that water could infiltrate the repository as a result of such diverse factors as geologic faulting, a meteor strike, or accidental or deliberate intrusion by man. The Commission noted that the probability of intrusion was small, and that the plasticity of salt would tend to heal some types of intrusions. The Commission also found the evidence “tentative but favorable” that an appropriate site could be found. Table S-3 refers interested persons to staff studies that discuss the uncertainties in greater detail. Given this record and the Commission’s statement, it simply cannot be said that the Commission ignored or failed to disclose the uncertainties surrounding its zero-release assumption.
Congress did not enact NEPA, of course, so that an agency would contemplate the environmental impact of an action as an abstract exercise. Rather, Congress intended that the “hard look” be incorporated as part of the agency’s process of deciding whether to pursue a particular federal action. It was on this ground that the Court of Appeals faulted the Commission’s action, for failing to allow the uncertainties potentially to “tip the balance” in a particular licensing decision. As a general proposition, we can agree with the Court of Appeals’ determination that an agency must allow all significant environmental risks to be factored into the decision whether to undertake a proposed action. We think, however, that the Court of Appeals erred in concluding that the Commission had not complied with this standard.
As Vermont Yankee made clear, NEPA does not require agencies to adopt any particular internal decisionmaking structure. Here, the agency has chosen to evaluate generically the environmental impact of the fuel cycle and inform individual licensing boards, through the Table S-3 rule, of its evaluation. The generic method chosen by the agency is clearly an appropriate method of conducting the “hard look” required by NEPA. See Vermont Yankee, 435 U. S., at 535, n. 13. The environmental effects of much of the fuel cycle are not plant specific, for any plant, regardless of its particular attributes, will create additional wastes that must be stored in a common long-term repository. Administrative efficiency and consistency of decision are both furthered by a generic determination of these effects without needless repetition of the litigation in individual proceedings, which are subject to review by the Commission in any event. See generally Ecology Action v. AEC, 492 F. 2d 998, 1002, n. 5 (CA2 1974) (Friendly, J.) (quoting Administrative Conference Proposed Recommendation 73-6).
The Court of Appeals recognized that the Commission has discretion to evaluate generically the environmental effects of the fuel cycle and require that these values be “plugged into” individual licensing decisions. The court concluded that the Commission nevertheless violated NEPA by failing to factor the uncertainty surrounding long-term storage into Table S-3 and precluding individual licensing decisionmakers from considering it.
The Commission’s decision to affix a zero value to the environmental impact of long-term storage would violate NEPA, however, only if the Commission acted arbitrarily and capriciously in deciding generically that the uncertainty was insufficient to affect any individual licensing decision. In assessing whether the Commission’s decision is arbitrary and capricious, it is crucial to place the zero-release assumption in context. Three factors are particularly important. First is the Commission’s repeated emphasis that the zero-release assumption — and, indeed, all of the Table S-3 rule — was made for a limited purpose. The Commission expressly noted its intention to supplement the rule with an explanatory narrative. It also emphasized that the purpose of the rule was not to evaluate or select the most effective long-term waste disposal technology or develop site selection criteria. A separate and comprehensive series of programs has been undertaken to serve these broader purposes. In the proceedings before us, the Commission’s staff did not attempt to evaluate the environmental effects of all possible methods of disposing of waste. Rather, it chose to analyze intensively the most probable long-term waste disposal method — burial in a bedded-salt repository several hundred meters below ground — and then “estimate its impacts conservatively, based on the best available information and analysis.” 44 Fed. Reg. 45863 (1979). The zero-release assumption cannot be evaluated in isolation. Rather, it must be assessed in relation to the limited purpose for which the Commission made the assumption.
Second, the Commission emphasized that the zero-release assumption is but a single figure in an entire Table, which the Commission expressly designed as a risk-averse estimate of the environmental impact of the fuel cycle. It noted that Table S-3 assumed that the fuel storage canisters and the fuel rod cladding would be corroded before a repository is closed and that all volatile materials in the fuel would escape to the environment. Given that assumption, and the improbability that materials would escape after sealing, the Commission determined that the overall Table represented a conservative (i. e., inflated) statement of environmental impacts. It is not unreasonable for the Commission to counteract the uncertainties in postsealing releases by balancing them with an overestimate of presealing releases. A reviewing court should not magnify a single line item beyond its significance as only part of a larger Table.
Third, a reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential. See, e. g., Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607, 656 (1980) (plurality opinion); id., at 705-706 (Marshall, J., dissenting).
With these three guides in mind, we find the Commission’s zero-release assumption to be within the bounds of reasoned decisionmaking required by the APA. We have already noted that the Commission’s Statement of Consideration detailed several areas of uncertainty and discussed why they were insubstantial for purposes of an individual licensing decision. The Table S-3 rule also refers to the staff reports, public documents that contain a more expanded discussion of the uncertainties involved in concluding that long-term storage will have no environmental effects. These staff reports recognize that rigorous verification of long-term risks for waste repositories is not possible, but suggest that data and extrapolation of past experience allow the Commission to identify events that could produce repository failure, estimate the probability of those events, and calculate the resulting consequences. NUREG-0116, at 4-86. The Commission staff also modeled the consequences of repository failure by tracing the flow of contaminated water, and found them to be insignificant. Id., at 4-89 through 4-94. Ultimately, the staff concluded that
“[t]he radiotoxic hazard index analyses and the modeling studies that have been done indicate that consequences of all but the most improbable events will be small. Risks (probabilities times consequences) inherent in the long term for geological disposal will therefore also be small.” Id., at 2-11.
We also find significant the separate views of Commissioners Bradford and Gilinsky. These Commissioners expressed dissatisfaction with the zero-release assumption and yet emphasized the limited purpose of the assumption and the overall conservatism of Table S-3. Commissioner Bradford characterized the bedded-salt repository as a responsible working assumption for NEPA purposes and concurred in the zero-release figure because it does not appear to affect Table S-3’s overall conservatism. 44 Fed. Reg. 45372 (1979). Commissioner Gilinsky was more critical of the entire Table, stating that the Commission should confront directly whether it should license any nuclear reactors in light of the problems of waste disposal, rather than hide an affirmative conclusion to this issue behind a table of numbers. He emphasized that the “waste confidence proceeding,” see n. 14, supra, should provide the Commission an appropriate vehicle for a thorough evaluation of the problems involved in the Government’s commitment to a waste disposal solution. For the limited purpose of individual licensing proceedings, however, Commissioner Gilinsky found it “virtually inconceivable” that the Table should affect the decision whether to license, and characterized as “naive” the notion that the fuel cycle effluents could tip the balance in some cases and not in others. 44 Fed. Reg. 45374 (1979).
In sum, we think that the zero-release assumption — a policy judgment concerning one line in a conservative Table designed for the limited purpose of individual licensing decisions — is within the bounds of reasoned decisionmaking. It is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine whether the Commission has considered the relevant factors and articulated a rational connection between the facts found and the choice made. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285-286 (1974); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971). Under this standard, we think the Commission's zero-release assumption, within the context of Table S-3 as a whole, was not arbitrary and capricious.
r-4 1 — 4 HH
As we have noted, n. 5, supra, Table S-3 describes effluents and other impacts in technical terms. The Table does not convert that description into tangible effects on human health or other environmental variables. The original and interim rules declared that “the contribution of the environmental effects of. . . fuel cycle activities . . . shall be as set forth in the following Table S-3 [and] [n]o further discussion of such environmental effects shall be required.” 39 Fed. Reg. 14191 (1974); 42 Fed. Reg. 13806 (1977). Since the Table does not specifically mention health effects, socioeconomic impacts, or cumulative impacts, this declaration does not clearly require or preclude their discussion. The Commission later amended the interim rule to clarify that health effects were not covered by Table S-3 and could be litigated in individual licensing proceedings. In the final rule, the Commission expressly required licensing boards to consider the socioeconomic and cumulative effects in addition to the health effects of the releases projected in the Table. 44 Fed. Reg. 45371 (1979).
The Court of Appeals held that the original and interim rules violated NEPA by precluding licensing boards from considering the health, socioeconomic, and cumulative effects of the environmental impacts stated in technical terms. As does the Commission, we agree with the Court of Appeals that NEPA requires an EIS to disclose the significant health, socioeconomic, and cumulative consequences of the environmental impact of a proposed action. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766 (1983); Kleppe v. Sierra Club, 427 U. S., at 410; 40 CFR §§ 1508.7, 1508.8 (1982). We find no basis, however, for the Court of Appeals’ conclusion that the Commission ever precluded a licensing board from considering these effects.
It is true, as the Commission pointed out in explaining why it modified the language in the earlier rules, that the original Table S-3 rule “at least initially was apparently interpreted as cutting off” discussion of the effects of effluent releases. 44 Fed. Reg. 45364 (1979). But even the notice accompanying the earlier versions stated that the Table was “to be used as a basis for evaluating the environmental effects in a cost-benefit analysis for a reactor,” 39 Fed. Reg. 14190 (1974) (emphasis added), suggesting that individual licensing boards were to assess the consequences of effluent releases. And when, operating under the initial rule, the Atomic Safety and Licensing Appeal Board suggested the desirability of discussing health effects for comparing nuclear with coal plants, In re Tennessee Valley Authority (Hartsville Nuclear Plant Units), 5 N. R. C. 92, 103, n. 52 (1977), the Commission staff was allowed to introduce evidence of public health consequences. Cf. In re Public Service Company of Indiana (Marble Hill Nuclear Generating Station), 7 N. R. C. 179, 187 (1978).
Respondents have pointed to no case where evidence concerning health or other consequences of the data in Table S-3 was excluded from licensing proceedings. We think our admonition in Vermont Yankee applies with equal force here:
“[WJhile it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.” 435 U. S., at 553.
In short, we find it totally inappropriate to cast doubt on licensing proceedings simply because of a minor ambiguity in the language of the earlier rule under which the environmental impact statement was made, when there is no evidence that this ambiguity prevented any party from making as full a presentation as desired, or ever affected the decision to license the plant.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the District of Columbia Circuit is
Reversed.
Justice Powell took no part in the consideration or decision of these cases.
APPENDIX TO THE OPINION OF THE COURT
Section 102(2)(C) provides:
“The Congress authorizes and directs that, to the fullest extent possible ... (2) all agencies of the Federal Government shall—
“(c) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
“(i) the environmental impact of the proposed action,
“(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and]
“(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”
The original Table S-3 rule was promulgated by the Atomic Energy Commission (AEC). Congress abolished the AEC in the Energy Reorganization Act of 1974,42 U. S. C. § 5801 et seq., and transferred its licensing and regulatory functions to the Nuclear Regulatory Commission (NRC). The interim and final rules were promulgated by the NRC. This opinion will use the term “Commission” to refer to both the NRC and the predecessor AEC.
Title 5 U. S. C. § 706 states in part:
“The reviewing court shall—
“(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
A light-water nuclear powerplant is one that uses ordinary water (H20), as opposed to heavy water (D20), to remove the heat generated in the nuclear core. See Van Nostrand’s Scientific Encyclopedia 1998, 2008 (D. Considine & G. Considine eds., 6th ed. 1983). The bulk of the reactors in the United States are light-water nuclear reactors. NRC Ann. Rep., Appendix 6 (1980).
For example, the tabulated impacts include the acres of land committed to fuel cycle activities, the amount of water discharged by such activities, fossil fuel consumption, and chemical and radiological effluents (measured in curies), all normalized to the annual fuel requirement for a model 1,000 megawatt light-water reactor. See Table S-3, reprinted in the Appendix, infra.
Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq., a utility seeking to construct and operate a nuclear powerplant must obtain a separate permit or license at both the construction and the operation stage of the project. After the Commission’s staff has examined the application for a construction license, which includes a review of possible environmental effects as required by NEPA, a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing and reaches a decision which can be appealed to the Atomic Safety and Licensing Appeal Board and, in the Commission’s discretion, to the Commission itself. The final agency decision may be appealed to the courts of appeals. A similar procedure occurs when the utility applies for an operating license, except that a hearing need be held only in contested cases. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 526-527 (1978).
High-level wastes, which are highly radioactive, are produced in liquid form when spent fuel is reprocessed. Transuranic wastes, which are also highly toxic, are nuclides heavier than uranium that are produced in the reactor fuel. See Natural Resources Defense Council, Inc. v. NRC, 222 U. S. App. D. C. 9, 16, n. 11, 685 F. 2d, 459, 466, n. 11 (1982).
In Vermont Yankee, we indicated that the Court of Appeals could consider any additions made to the record by the Commission, and could consolidate review of the initial review with review of later rules. 435 U. S., at 537, n. 14. Consistent with this direction, the parties stipulated that all three versions of the rule could be reviewed on the basis of the whole record. See 222 U. S. App. D. C., at 21, n. 39, 685 F. 2d, at 471, n. 39.
Judge Bazelon wrote the opinion for the court. Judge Wilkey joined the section of the opinion that rejected New York’s argument that the waste-disposal technology assumed for calculation of certain effluent release values was economically infeasible. That issue is not before us. Judge Wilkey filed a dissenting opinion on the issues that are under review here. Judge Edwards of the Court of Appeals for the Sixth Circuit, sitting by designation, joined these sections of Judge Bazelon’s opinion, and also filed a separate opinion concurring in part and dissenting on the economic infeasibility issue.
As the Court of Appeals recognized, 222 U. S. App. D. C., at 31, n. 118, 685 F. 2d, at 481, n. 118, the Commission became increasingly candid in acknowledging the uncertainties underlying permanent waste disposal. Because all three versions of Table S-3 use the same zero-release assumption, and the parties stipulated that the entire record be used in reviewing all three versions, see n. 8, supra, we need review only the propriety of the final Table S-3 rule. We leave for another day any general concern with an agency whose initial Environmental Impact Statement (EIS) is insufficient but who later adequately supplements its consideration and disclosure of the environmental impact of its action.
The record includes more than 1,100 pages of prepared direct testimony, two rounds of questions by participants and several hundred pages of responses, 1,200 pages of oral hearings, participants’ rebuttal testimony, concluding statements, the 137-page report of the hearing board, further written statements from participants, and oral argument before the Commission. The Commission staff has prepared three studies of the environmental effects of the fuel cycle: Environmental Survey of the Uranium Fuel Cycle, WASH-1248 (Apr. 1974); Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0116 (Supp. 1 to WASH-1248) (Oct. 1976) (hereinafter cited as NUREG-0116); and Public Comments and Task Force Responses Regarding the Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle, NUREG-0216 (Supp. 2 to WASH-1248) (Mar. 1977).
We are reviewing here only the Table S-3 rulemaking proceedings, and do not have before us an individual EIS that incorporates Table S-3. It is clear that the Statement of Consideration supporting the Table S-3 rule adequately discloses the environmental uncertainties considered by the Commission. However, Table S-3 itself refers to other documents but gives only brief descriptions of the environmental effects it encapsulates. There is some concern with an EIS that relies too heavily on separate documents rather than addressing the concerns directly. Although we do not decide whether they have binding effect on an independent agency such as the Commission, it is worth noting that the guidelines from the Council on Environmental Quality in effect during these proceedings required that “care should be taken to ensure that the statement remains an essentially self-contained instrument, capable of being understood by the reader without the need for undue cross reference.” 38 Fed. Reg. 20554 (1973), 40 CFR § 1500.8(b) (1974). The present regulations state that incorporation by reference is permissible if it will not “imped[e] agency and public review of the action. The incorporated material shall be cited in the statement and its content briefly described.” 40 CFR § 1502.21 (1982). The Court of Appeals noted that NEPA “requires an agency to do more than to scatter its evaluation of environmental damage among various public documents,” 222 U. S. App. D. C., at 34, 685 F. 2d, at 484, but declined to find that the incorporation of other documents by reference would invalidate an EIS that used Table S-3 to describe the environmental impact of the fuel cycle. The parties here do not treat this insufficient disclosure argument as a separate argument and, like the Court of Appeals, we decline to strike down the rule on this ground. We do not deny the value of an EIS that can be understood without extensive cross-reference. The staff documents referred to in Table S-3 are public documents, however, and we note that the Commission has proposed an explanatory narrative to accompany Table S-3, which would be included in an individual EIS, that may alleviate some of the concerns of incorporation. See n. 13, infra.
In March 1981, the Commission submitted a version of the explanatory narrative for public comment as a proposed amendment to the final fuel cycle rule. 46 Fed. Reg. 15154 (1981). The Commission has not yet adopted a final narrative.
In response to Minnesota v. NRC, 195 U. S. App. D. C. 234, 602 F. 2d 412 (1979), the Commission has initiated a "waste confidence” proceeding to consider the most recent evidence regarding the likelihood that nuclear waste can be safely disposed of and when that, or some other offsite storage solution, can be accomplished. 44 Fed. Reg. 61372 et seq. (1979). See id., at 45363. The recently enacted Nuclear Waste Policy Act of 1982, Pub. L. 97-425, 96 Stat. 2201, 42 U. S. C. § 10101 et seq. (1982 ed.), has set up a schedule for identifying site locations and a funding mechanism for development of permanent waste repositories. The Environmental Protection Agency has also proposed standards for future waste repositories, 47 Fed. Reg. 58196 et seq. (1982).
For example, Table S-3 assumes that plutonium will not be recycled. The Commission noted that, in response to a Presidential directive, it had terminated separate proceedings concerning the possibility of recyling plutonium in mixed oxide fuel. 44 Fed. Reg. 45369, n. 28 (1979). See In re Mixed Oxide Fuel, 6 N. R. C. 861 (1977); In re Mixed Oxide Fuel, 7 N. R. C. 711 (1978).
The Commission also increased the overall conservatism of the Table by overestimating the amount of fuel consumed by a reactor, underestimating the amount of electricity produced, and then underestimating the efficiency of filters and other protective devices. See Conclusions and Recommendations of the Hearing Board Regarding the Environmental Effects of the Uranium Fuel Cycle, Docket No. Rm 50-3, App. to Pet. for Cert, in No. 82-524, pp. 282a-293a. Additionally, Table S-3, which analyzes both a uranium-recycle and no-recycle system, conservatively lists, for each effluent, the highest of the two releases that would be expected under each cycle. 41 Fed. Reg. 45849, 45850 (1976).
The Court of Appeals recognized that the Commission could weigh certain generic costs and benefits of reactors against each other to produce a generic “net value” to be used in individual licensing proceedings. 222 U. S. App. D. C., at 32, 685 F. 2d, at 482. We see no reason why the Commission does not have equal discretion to evaluate certain environmental costs together to produce a generic net cost.
For example, using this approach the staff estimated that a meteor the size necessary to damage a repository would hit a given square kilometer of the earth’s surface only once every 50 trillion years, and that geologic faulting through the Delaware Basin in southeast New Mexico (assuming that were the site of the repository) would occur once in 25 billion years. NUREG-0116, at 4-87. The staff determined that a surface burst of a 50 megaton nuclear weapon, far larger than any currently deployed, would not breach the repository. Ibid. The staff also recognized the possibility that heat generated by the waste would damage the repository, but suggested this problem could be alleviated by decreasing the density of the stored waste. In recognition that this suggestion would increase the size of the repository, the Commission amended Table S-3 to reflect the greater acreage required under these assumptions. See 44 Fed. Reg. 45369 (1979).
Of course, just as the Commission has discretion to evaluate generically aspects of the environmental impact of the fuel cycle, it has discretion to have other aspects of the issue decided in individual licensing decisions.
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: |
sc_certreason | B | 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.
SAWYER v. SMITH, INTERIM WARDEN
No. 89-5809.
Argued April 25, 1990
Decided June 21, 1990
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, in which Black-mun, J., joined as to Parts I, II, III, and IV, and in which Stevens, J., joined as to Parts I, II, and III, post, p. 245.
Catherine Hancock argued the cause for petitioner. With her on the briefs was Elizabeth W. Cole.
Dorothy A. Pendergast argued the cause for respondent. With her on the brief were John M. Mamoulides and Terry M. Boudreaux.
Julius L. Chambers filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the American Bar Association by Stanley Chauvin, Jr., Jay Topkis, Ronald J. Tabak, and Eric M. Freedman; and for Stephen H. Sachs et al. by Randy Hertz and Michael Millemann.
Justice Kennedy
delivered the opinion of the Court.
We must decide in this case whether a prisoner whose murder conviction became final before our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), is entitled to use that decision to challenge his capital sentence in a federal habeas corpus action. We hold that he cannot, for Caldwell announced a new rule as defined by Teague v. Lane, 489 U. S. 288 (1989), and the new rule does not come within Teague’s exception for watershed rules fundamental to the integrity of the criminal proceeding.
I
Over 10 years ago, petitioner Robert Sawyer murdered Frances Arwood, a visitor in the New Orleans, Louisiana, residence petitioner shared with his girlfriend, Cynthia Shano. On September 29, 1979, petitioner and his accomplice Charles Lane arrived at the residence after a night of drinking. They argued with Arwood and accused her of giving drugs to Shano’s children. For reasons that are not clear, petitioner and Lane struck Arwood repeatedly with their fists and dragged her by the hair into the bathroom. There they stripped the victim naked, literally kicked her into the bathtub, and subjected her to scalding, dunkings, and additional beatings. Petitioner left Lane to guard the victim, and apparently to rape her, while petitioner went to the kitchen to boil water to scald her. Petitioner kicked Arwood in the chest, causing her head to strike the tub or a windowsill and rendering her unconscious. The pair then dragged Arwood into the living room, where they continued to beat and kick her. Petitioner poured lighter fluid on the unconscious victim, particularly her torso and genital area, and set the lighter fluid afire. He told Lane that he had done this to show “just how cruel he could be.” There were further brutalities we do not recount. Arwood later died of her injuries.
Petitioner was convicted and sentenced to death for the crime by a Louisiana jury in September 1980. At issue in this case are remarks made by the prosecutor in his closing argument during the sentencing phase of the trial. The prosecutor first stated, after discussing the proof of aggravating circumstances under Louisiana law:
“The law provides that if you find one of those circumstances then what you are doing as a juror, you yourself will not be sentencing Robert Sawyer to the electric chair. What you are saying to this Court, to the people of this Parish, to any appellate court, the Supreme Court of this State, the Supreme Court possibly of the United States, that you the people as a fact finding body from all the facts and evidence you have heard in relationship to this man’s conduct are of the opinion that there are aggravating circumstances as defined by the statute, by the State Legislature that this is a type of crime that deserves that penalty. It is merely a recommendation so try as he may, if Mr. Weidner tells you that each and every one of you I hope can live with your conscience and try and play upon your emotions, you cannot deny, it is a difficult decision. No one likes to make those type of decisions but you have to realize if but for this man’s actions, but for the type of life that he has decided to live, if of his own free choosing, I wouldn’t be here presenting evidence and making argument to you. You wouldn’t have to make the decision.” Tr. 982.
After emphasizing the brutal nature of the crime for which they had convicted petitioner, the prosecutor told the jury:
“There is really not a whole lot that can be said at this point in time that hasn’t already been said and done. The decision is in your hands. You are the people that are going to take the initial step and only the initial step and all you are saying to this court, to the people of this Parish, to this man, to all the Judges that are going to review this case after this day, is that you the people do not agree and will not tolerate an individual to commit such a heinous and atrocious crime to degrade such a fellow human being without the authority and the impact, the full authority and impact of the law of Louisiana. All you are saying is that this man from his actions could be prosecuted to the fullest extent of the law. No more and no less.” Id., at 984.
Finally, the prosecutor emphasized again that the jury’s decision would be reviewed by later decisionmakers:
“It’s all [you’re] doing. Don’t feel otherwise. Don’t feel like you are the one, because it is very easy for defense lawyers to try and make each and every one of you feel like you are pulling the switch. That is not so. It is not so and if you are wrong in your decision believe me, believe me there will be others who will be behind you to either agree with you or to say you are wrong so I ask that you do have the courage of your convictions.” Id., at 985.
The Louisiana Supreme Court affirmed petitioner’s conviction and sentence. State v. Sawyer, 422 So. 2d 95 (1982). This Court granted certiorari and remanded the case with instructions to the Louisiana Supreme Court to reconsider its decision in light of Zant v. Stephens, 462 U. S. 862 (1983). Sawyer v. Louisiana, 463 U. S. 1223 (1983). The Louisiana Supreme Court reaffirmed the capital sentence on remand, Sawyer v. Louisiana, 442 So. 2d 1136 (1983). His conviction and sentence became final on April 2, 1984, when we denied certiorari, Sawyer v. Louisiana, 466 U. S. 931. Petitioner sought state collateral relief, which was denied. Sawyer v. Maggio, 479 So. 2d 360 (La. 1985); Sawyer v. Maggio, 480 So. 2d 313 (La. 1985).
Petitioner then filed the federal habeas corpus petition now before us, raising a host of constitutional claims. Relevant here is petitioner’s claim that the prosecutor’s closing argument violated the Eighth Amendment of the United States Constitution by diminishing the jury’s sense of responsibility for the capital sentencing decision, in violation of our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985). Caldwell was decided over one year after petitioner’s conviction became final.
The District Court denied relief, concluding that the prosecutor’s remarks were of a different character from those in Caldwell, and that there was no reasonable probability that the sentence would have been different in the absence of the comments. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 848 F. 2d 582 (1988). The panel held that the facts in this case were “a far cry from those in Caldwell,” in large part due to the absence of any judicial approval of the prosecutor’s comments. Id., at 596. Following the panel decision, the Fifth Circuit granted rehearing en banc. Id., at 606.
After the en banc court heard oral argument, but while the case was pending, a plurality held in Teague v. Lane, 489 U. S. 288 (1989), that a rule of constitutional law established after a petitioner’s conviction has become final may not be used to attack the conviction on federal habeas corpus unless the rule falls within one of two narrow exceptions. The Fifth Circuit requested supplemental briefing from the parties on the question whether Teague barred petitioner’s claim for relief under Caldwell. The en banc court held that Caldwell announced a new rule within the meaning of Teague, a rule not within Teague’s second exception for watershed rules of criminal procedure that guarantee the accuracy of a criminal proceeding. Accordingly, the Court of Appeals affirmed the denial of habeas corpus relief. 881 F. 2d 1273 (1989).
We granted certiorari, 493 U. S. 1042 (1990), to resolve a conflict among the Courts of Appeals, see Hopkinson v. Shillinger, 888 F. 2d 1286 (CA10 1989), and now affirm.
II
We must address first whether, in relying on Caldwell, petitioner claims the benefit of a new rule, as defined by our decision in Teague. In Caldwell, we held that the Eighth Amendment prohibits the imposition of a death sentence by a sentencer that has been led to the false belief that the responsibility for determining the appropriateness of the defendant’s capital sentence rests elsewhere. See 472 U. S., at 328-329; id., at 342 (opinion of O’Connor, J.). We determined that false information of this type might produce “substantial unreliability as well as bias in favor of death sentences.” Id., at 330.
At the outset we note that the parties dispute whether Caldwell, even if its rule applies, could support any claim for relief in petitioner’s case. The State emphasizes that the judge in this case, unlike Caldwell, see id., at 339, did not approve the prosecutor’s argument, and that the remarks in this case were less likely to mislead. Petitioner, on the other hand, contends that the prosecutor’s remarks were similar to those in Caldwell, and were not cured by the judge’s instructions to the jury. We need not address the significant questions concerning the merits of petitioner’s Caldwell claim on these facts, or the question whether application of Caldwell to the facts presented here would itself involve a new rule of law. Rather, we address only whether Caldwell is available to petitioner as a ground upon which he may seek relief. Cf. Dugger v. Adams, 489 U. S. 401, 408, n. 4 (1989) (merit of Caldwell claim immaterial to disposition of case on procedural bar grounds).
Our review of the relevant precedents that preceded Caldwell convinces us that it is a new rule for purposes of Teague. On this point we are in accord with the Court of Appeals, as well as the other two Courts of Appeals that have addressed the question. See Clark v. Dugger, 901 F. 2d 908 (CA11 1990); Hopkinson v. Shillinger, supra. The rule of Teague serves to “validate] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U. S. 407, 414 (1990). Thus, we have defined new rules as those that were not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, supra, at 301 (plurality opinion). The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.
Caldwell, of course, was not decided upon a clean slate. As the Court in Caldwell recognized, we had earlier addressed the question of improper prosecutorial comment in Donnelly v. DeChristoforo, 416 U. S. 637 (1974). We stated in Donnelly that improper remarks by a prosecutor could at some point “so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.” Id., at 643. No such pervasive error was established in that case, and we took the occasion to warn against “holding every improper and unfair argument of a state prosecutor to be a federal due process violation.” Caldwell, supra, at 338. Caldwell, unlike Donnelly, was a capital case; and while noting the principle set forth in Donnelly, the Court in Caldwell determined to rely not on the Due Process Clause but on more particular guarantees of sentencing reliability based on the Eighth Amendment. In Donnelly we had reversed a Court of Appeals opinion vacating a conviction because prosecutorial comments were “potentially” misleading, 416 U. S., at 641, but in Caldwell we found that the need for reliable sentencing in capital cases required a new sentencing proceeding because false prosecutorial comment created an “unacceptable risk that ‘the death penalty [may have been] meted out arbitrarily or capriciously,’” 472 U. S., at 343 (opinion of O’Connor, J.).
Examination of our Eighth Amendment authorities that preceded Caldwell shows that it was not dictated by prior precedent existing at the time the defendant’s conviction became final. In Caldwell itself we relied on Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Gardner v. Florida, 430 U. S. 349 (1977) (plurality opinion); and Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), in support of the result. We cited these decisions for the general proposition that capital sentencing must have guarantees of reliability, and must be carried out by jurors who would view all of the relevant characteristics of the crime and the criminal, and take their task as a serious one. Petitioner, too, cites these and other cases in support of the argument that Caldwell was “rooted” in the Eighth Amendment command of reliable sentencing, and that application of these cases to misleading prosecutorial comment “[b]y analogy” would lead to the predictable Caldwell result. Brief for Petitioner 16.
We do not doubt that our earlier Eighth Amendment cases lent general support to the conclusion reached in Caldwell. But neither this fact, nor petitioner’s contention that state courts “would have found Caldwell to be a predictable development in Eighth Amendment law,” Brief for Petitioner 8, suffices to show that Caldwell was not a new rule. In petitioner’s view, Caldwell was dictated by the principle of reliability in capital sentencing. But the test would be meaningless if applied at this level of generality. Cf. Anderson v. Creighton, 483 U. S. 635, 639 (1987) (“[I]f the test of ‘clearly established law’ were to be applied at this level of generality, . . . [plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights”).
It is beyond question that no case prior to Caldwell invalidated a prosecutorial argument as impermissible under the Eighth Amendment. Eddings and Lockett invalidated statutory schemes that imposed an absolute prohibition against consideration of certain mitigating evidence by the sen-tencer. Woodson invalidated a capital sentencing statute providing for mandatory capital sentencing. Gardner invalidated a capital sentence based on information of which the defendant had no notice or opportunity to respond. These cases do not speak to the issue we decided in Caldwell. What we said in Saffle v. Parks, 494 U. S. 484, 491 (1990), applies here: “Even were we to agree with [petitioner’s] assertion that our decisions in Lockett and Eddings inform, or even control or govern, the analysis of his claim, it does not follow that they compel the rule that [petitioner] seeks.” Certainly Caldwell was not seen as compelled by the three Justices of this Court who found a “lack of authority” in our Eighth Amendment precedents for the approach taken there. See 472 U. S., at 350 (Rehnquist, J., dissenting).
From the point of view of a state court considering petitioner’s claim at the time his conviction became final, Saffle, supra, at 488, there were in fact indications in our decisions that the Caldwell rule was not a requirement of the Eighth Amendment. In a previous case raising an Eighth Amendment challenge to prosecutorial comment, we had rejected the petitioner’s claim. California v. Ramos, 463 U. S. 992 (1983). Indeed, the Mississippi Supreme Court had held without dissent in Caldwell that Ramos stood for the proposition that “states may decide whether it is error to mention to jurors the matter of appellate review.” See Caldwell v. State, 443 So. 2d 806, 813 (1983). The Mississippi court’s characterization of Ramos, of course, later proved to be incorrect. But this nonetheless suggests that prior to Caldwell our cases did not put other courts on notice that the Eighth Amendment compelled the Caldwell result.
Our opinion in Maggio v. Williams, 464 U. S. 46 (1983), provides more direct evidence that the rule of Caldwell cannot be described as dictated by existing law at the time petitioner’s claim became final. In Williams we vacated a stay of execution in a case presenting a claim very similar to that in Caldwell. Justice Stevens’ opinion concurring in the judgment described at length the prosecutor’s argument in that case, 464 U. S., at 53-54, one similar to the argument made in Caldwell. The Court, however, found that the prisoner’s challenge to the prosecutor’s statements “warrant[ed] little discussion.” 464 U. S., at 49. Although we stated that the failure to raise the claim of improper prosecutorial argument in an earlier habeas petition was “inexcusable,” we noted that the District Court in the second petition had given the claim “full consideration” under the “standard established in Donnelly v. DeChristoforo, 416 U. S. 637 (1974),” and had found that the prosecutor’s closing argument “did not render Williams’ trial fundamentally unfair.” Id., at 49-50. Our opinion concluded by describing this and other claims raised by Williams as “insubstantial.” Id., at 52. Williams, of course, did not represent a rejection on the merits of the rule announced in Caldwell. But given our statements concerning so similar a claim in Williams, we do not think a state court viewing petitioner’s case at the time his conviction became final could have concluded that our Eighth Amendment precedents compelled such a rule.
We note also that, when petitioner’s conviction became final, there was some reason for doubt as to this Court’s view concerning what became a major premise of Caldwell, that misleading prosecutorial comment might cause a “bias in favor of death sentences.” 472 U. S., at 330. At the time of petitioner’s trial and appeal there was at least “some suggestion,” see Dugger v. Adams, 489 U. S., at 409, that comments tending to diminish the jury’s sense of sentencing responsibility would skew the result toward leniency rather than a death sentence. See Dobbert v. Florida, 432 U. S. 282, 294, and n. 7 (1977) (Florida’s change to a system in which jury’s verdict was advisory might benefit defendants, as the jury “may have chosen leniency when they knew [the sentencing] decision rested ultimately on the shoulders of the trial judge, but might not have followed the same course if their vote were final”).
Petitioner places primary reliance on numerous state cases, decided prior to the finality of his conviction, that prohibited prosecutorial statements of the type later held to violate the Eighth Amendment in Caldwell. See, e. g., Ward v. Commonwealth, 695 S. W. 2d 404, 408 (Ky. 1985); Ice v. Commonwealth, 667 S. W. 2d 671, 676 (Ky.), cert. denied, 469 U. S. 860 (1984); Wiley v. State, 449 So. 2d 756, 762 (Miss. 1984), cert. denied, 479 U. S. 906 (1986); Williams v. State, 445 So. 2d 798, 811-812 (Miss. 1984), cert. denied, 469 U. S. 1117 (1985); State v. Robinson, 421 So. 2d 299, 233-234 (La. 1982); State v. Willie, 410 So. 2d 1019, 1033-1035 (La. 1982), cert. denied, 465 U. S. 1051 (1984); State v. Jones, 296 N. C. 495, 501-502, 251 S. E. 2d 425, 427-429 (1979); State v. Gilbert, 273 S. C. 690, 696-698, 258 S. E. 2d 890, 894 (1979); State v. Tyner, 273 S. C. 646, 659-660, 258 S. E. 2d 559, 566 (1979); Hawes v. State, 240 Ga. 327, 334-335, 240 S. E. 2d 833, 839 (1977); Fleming v. State, 240 Ga. 142, 145-146, 240 S. E. 2d 37, 40 (1977), cert. denied, 444 U. S. 885 (1979); State v. White, 286 N. C. 395, 403-404, 211 S. E. 2d 445, 450 (1975); Prevatte v. State, 233 Ga. 929, 932-933, 214 S. E. 2d 365, 367-368 (1975); State v. Hines, 286 N. C. 377, 381-386, 211 S. E. 2d 201, 204-207 (1975). Petitioner argues that these authorities show that state courts anticipated the rule of Caldwell, and that no state reliance interest could be upset by retroactive application of the federal rule to overturn a state conviction that became final before Caldwell was decided.
The flaw in this argument is that “the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, supra, at 409. All of the cases cited by petitioner, with one arguable exception, are decisions of state law, and do not purport to construe the Eighth Amendment. These cases, moreover, apply state common-law rules prohibiting any mention of appellate review; they do not condemn false prosecutorial statements under the Eighth Amendment analysis employed in Caldwell. Reliance on state-law cases for the proposition that the rule adopted in Caldwell was an old one misapprehends the function of federal habeas corpus. As we have said, the “ ‘relevant frame of reference’ ” for the new rule inquiry “ ‘is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the writ of habeas corpus is made available.’” Teague, 489 U. S., at 306 (plurality opinion) (quoting Mackey v. United States, 401 U. S. 667, 682 (1971)). Federal habeas corpus serves to ensure that state convictions comport with the federal law that was established at the time petitioner’s conviction became final.
Petitioner points out, to support his argument that Caldwell applied an old rule, that our opinion there was based in part on the adoption by many state courts of rules that prohibited prosecutorial comments that could diminish the jury’s sense of sentencing responsibility. Brief for Petitioner 11; see 472 U. S., at 333-334, and n. 4. It is true that our cases have looked to the decisions of state courts and legislatures to inform Eighth Amendment analysis. But petitioner’s attempt to use this fact to show that Caldwell is an old rule is untenable. Under this view, state-court decisions would both inform this Court’s decisions on the substantive content of the Eighth Amendment and, by simultaneous effect, impose those standards back upon the States themselves with retroactive effect. This view is also inconsistent with our citation in Penry v. Lynaugh, 492 U. S. 302, 329-330 (1989), of Ford v. Wainwright, 477 U. S. 399 (1986), which relied for its Eighth Amendment analysis on the statutory or common law of a majority of the States, see id., at 408-409, as an example of a new rule.
One Louisiana case cited by petitioner disapproving pros-ecutorial comment on appellate review does discuss Eighth Amendment principles rather than relying solely on state law. Even in this case, however, the court cited Eighth Amendment cases only in its discussion of prosecutorial reference to the possibility of pardon. Its discussion of pros-ecutorial comment on appellate review, the issue before us here, referred to state-law rules. See State v. Willie, supra, at 1033 (La. 1982), cert. denied, 465 U. S. 1051. Petitioner also cites post-Caldwell Louisiana cases, which cite Caldwell and state cases interchangeably, and state that Caldwell did not change prior law in the State. See State v. Smith, 554 So. 2d 676, 685 (La. 1989); State v. Clark, 492 So. 2d 862, 870-871 (La. 1986); State ex rel. Busby v. Butler, 538 So. 2d 164, 173 (La. 1988). To the extent these cases reflect state-court recognition that general Eighth Amendment principles pointed toward adoption of a Caldwell rule, or that Caldwell is congruent with pre-existing state law, they cannot serve to show that Caldwell was dictated by our Eighth Amendment precedent. State courts as well as federal can be expected to engage in application of the principles announced in prior Eighth Amendment decisions that are “susceptible to debate among reasonable minds.” Butler, 494 U. S., at 415.
Petitioner appears to contend that state courts will recognize federal constitutional protections only if they are compelled to do so by federal precedent and the threat of federal habeas review. Since some state courts had recognized a principle similar to Caldwell’s, this argument goes, the result in Caldwell must have been compelled by Eighth Amendment precedent. This argument is premised on a skepticism of state courts that we decline to endorse. State courts are coequal parts of our national judicial system and give serious attention to their responsibilities for enforcing the commands of the Constitution. It is not surprising that state courts, whether applying federal constitutional protections or seeking fair administration of their own state capital punishment law, would have taken care to exclude misleading prosecuto-rial comment. But this conscientious exercise of their powers of supervision and review could not dictate Caldwell as a principle of federal law under the Eighth Amendment.
HH HH HH
Under Teague, new rules may be applied m habeas corpus proceedings only if they come within “one of two narrow exceptions.” Saffle, 494 U. S., at 486. The first of these applies to new rules that place an entire category of primary-conduct beyond the reach of the criminal law, Teague, supra, at 311 (plurality opinion), or new rules that-prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense, Penry, supra, at 330. This exception has no application here. The second Teague exception applies to new “watershed rules of criminal procedure” that are necessary to the fundamental fairness of the criminal proceeding. Saffle, supra, at 495; Teague, 489 U. S., at 311-313 (plurality opinion). Petitioner here challenges the Court of Appeals’ conclusion that Caldwell does not come within this exception.
Petitioner contends that the second Teague exception should be read to include new rules of capital sentencing that “preserve the accuracy and fairness of capital sentencing judgments.” Brief for Petitioner 30. But this test looks only to half of our definition of the second exception. Acceptance of petitioner’s argument would return the second exception to the broad definition that Justice Harlan first proposed in Desist, but later abandoned in Mackey, under which new rules that “significantly improve the pre-existing fact-finding procedures are to be retroactively applied on ha-beas.” Desist v. United States, 394 U. S. 244, 262 (1969). In Teague, we modified Justice Harlan’s test to combine the accuracy element of the Desist test with the Mackey limitation of the exception to watershed rules of fundamental fairness. It is thus not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also “ ‘alter our understanding of the bedrock procedural elements’ ” essential to the fairness of a proceeding. Teague, supra, at 311 (plurality opinion) (quoting Mackey, 401 U. S., at 693).
The scope of the Teague exceptions must be consistent with the recognition that “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Teague, supra, at 309 (plurality opinion) (citing Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev. 142, 150 (1970)). The “costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Solem v. Stumes, 465 U. S. 638, 654 (1984) (opinion of Powell, J.). As we stated in Teague, because the second exception is directed only at new rules essential to the accuracy and fairness of the criminal process, it is “unlikely that many such components of basic due process have yet to emerge.” 489 U. S., at 313 (plurality opinion).
It is difficult to see any limit to the definition of the second exception if cast as proposed by petitioner. All of our Eighth Amendment jurisprudence concerning capital sentencing is directed toward the enhancement of reliability and accuracy in some sense. Indeed, petitioner has not suggested any Eighth Amendment rule that would not be sufficiently “fundamental” to qualify for the proposed definition of the exception, and at oral argument in this case counsel was unable to provide a single example. Tr. of Oral Arg. 17. In practical effect, petitioner asks us to overrule our decision in Penry that Teague applies to new rules of capital sentencing. This we decline to do.
At the time of petitioner’s trial and appeal, the rule of Don-nelly was in place to protect any defendant who could show that a prosecutor’s remarks had in fact made a proceeding fundamentally unfair. It was always open to this petitioner to challenge the prosecutor’s remarks at his sentencing proceeding, by making the showing required by Donnelly. See Dugger v. Adams, 489 U. S., at 410 (defendant whose trial and appeal occurred prior to Caldwell “could have challenged the improper remarks by the trial judge at the time of his trial as a violation of due process. See Donnelly v. De-Christoforo, 416 U. S. 637 (1974)”); Maggio v. Williams, 464 U. S., at 49-50 (discussing application of Donnelly to improper remarks at sentencing). Petitioner has not contested the Court of Appeals’ finding that he has no claim for relief under the Donnelly standard. And as the Court of Appeals stated: “[T]he only defendants who need to rely on Caldwell rather than Donnelly are those who must concede that the prosecutorial argument in their case was not so harmful as to render their sentencing trial ‘fundamentally unfair. ’ ” 881 F. 2d, at 1293.
Rather than focusing on the prejudice to the defendant that must be shown to establish a Donnelly violation, our concern in Caldwell was with the “unacceptable risk” that misleading remarks could affect the reliability of the sentence. See 472 U. S., at 343 (opinion of O’Connor, J.). Caldwell must therefore be read as providing an additional measure of protection against error, beyond that afforded by Donnelly, in the special context of capital sentencing. See Darden v. Wainwright, 477 U. S. 168, 183-184, n. 14 (1986). The Caldivell rule was designed as an enhancement of the accuracy of capital sentencing, a protection of systemic value for state and federal courts charged with reviewing capital proceedings. But given that it was added to an existing guarantee of due process protection against fundamental unfairness, we cannot say this systemic rule enhancing reliability is an “absolute prerequisite to fundamental fairness,” 489 U. S., at 314, of the type that may come within Teague s second exception.
Discussions of the nature of Caldivell error from other contexts also support our conclusion. In Dugger v. Adams, supra, we held that failure to consider a Caldwell claim would not come within a “fundamental miscarriage of justice” exception to the doctrine of procedural default. Id., at 412, n. 6; see Murray v. Carrier, 477 U. S. 478 (1986). We rejected the dissent’s contention that a fundamental miscarriage of justice had been shown in that “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined.” Dugger, supra, at 412, n. 6. Similarly, in Williams, supra, Justice Stevens concluded his discussion of a Caldivell-type claim by stating: “I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, [455 U. S. 509,] 543, and n. 8 [(1982)] (Stevens, J., dissenting).” 464 U. S., at 56. These cases, of course, involved different rules and contexts. Yet we think their rationale reflects a rejection of the argument that Caldwell represents a rule fundamental to the criminal proceeding.
Because petitioner seeks the benefit of a new rule that does not come within either of the Teague exceptions, his claim for habeas corpus relief is without merit. The judgment of the Court of Appeals is therefore
Affirmed.
That Penry v. Lynaugh, 492 U. S. 302, 329 (1989), and Teague v. Lane, 489 U. S. 288, 301 (1989), cite Ford v. Wainwright, 477 U. S. 399 (1986), as crafting a “new” rule does not establish that state decisions are irrelevant in assessing the status of a right under the Federal Constitution. Cf. ante, at 240. Neither of these opinions discussed the citation to Ford, and the force of their conclusions is undermined by this Court’s subsequent reliance on state decisions in Saffle v. Parks, 494 U. S. 484 (1990), to determine whether the rule invoked in that ease was compelled by our Eighth Amendment decisions, see id., at 490-491 (citing state decisions). State decisions cannot be deemed relevant to the Teague inquiry only to the extent that they disprove the rootedness of a constitutional right.
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_numresp | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America ex rel. John B. ADAMS, Petitioner-Appellant, v. Peter BENSINGER, Director, Department of Corrections, and John Twomey, Warden, Respondents-Appellees.
No. 73-1531.
United States Court of Appeals, Seventh Circuit.
Argued April 11, 1974.
Decided Dec. 10, 1974.
Certiorari Denied April 14, 1975.
See 95 S.Ct. 1589.
Ivan E. Bodensteiner, Max G. Mess-man (Law Student), Valparaiso, Ind., for petitioner-appellant.
William J. Scott, Atty. Gen., Steven J. Rosenberg, Asst. Atty. Gen., Chicago, 111., for respondents-appellees.
Before SWYGERT, Chief Judge and FAIRCHILD and SPRECHER, Circuit Judges.
SWYGERT, Chief Judge.
This appeal represents what we hope will be the last major step in a seven year legal battle to have the federal courts consider the merits of petitioner John B. Adams’ claim for habeas corpus relief.
In 1963 petitioner, with two co-defendants, was convicted of murder in an Illinois court and sentenced to a prison term of thirty-five to seventy years. On direct appeal to the Illinois Supreme Court his conviction was affirmed. People v. Henderson, 37 Ill.2d 489, 229 N.E.2d 519 (1967). Petitioner then filed a habeas corpus petition in the United States District Court for the Northern District of Illinois, alleging that an involuntary confession had been used against him. On January 11, 1968 this petition was dismissed for failure to exhaust state remedies. On appeal to this court the order of dismissal was vacated and the cause was remanded to the district court for review of all documents before the Illinois Supreme Court to determine whether the voluntariness issue had been squarely presented to and considered by that court. Adams v. Pate, 418 F.2d 815 (7th Cir. 1969). On remand, the district court again dismissed for failure to exhaust state remedies. That order was affirmed by this court with the suggestion that petitioner had state remedies available under the Illinois Post-Conviction Hearing Act. Pursuant to this suggestion, a petition for state post-conviction relief was filed before the original trial judge in 1970. An evidentiary hearing was held on the issue of the involuntariness of the confession, but on March 19, 1971 the trial judge, without making a finding on the ultimate question of the voluntariness of the confession, denied petitioner any relief apparently on the basis of res judicata and waiver. On September 20, 1972 the Illinois Supreme Court affirmed on the ground that “inasmuch as the issue of the voluntariness of his confession was decided adversely to petitioner on direct appeal, reconsideration of the issue is barred by res judicata.” People v. Adams, 52 Ill.2d 224, 225, 287 N.E.2d 695, 696 (1972).
Petitioner then filed the federal ha-beas corpus petition that is the subject of this appeal. Again the issue raised was the use of a confession that was allegedly involuntary in view of the totality of the circumstances. The district court dismissed the petition without a hearing on the basis that the petitioner had waived this claim by not raising it in the state courts. The court added that even if the issue were before it, the confession would be deemed voluntary.
I
Our initial question is whether for purposes of federal habeas corpus relief the petitioner has waived the claim of an involuntary confession by failing to raise the contention in terms of the “totality of the circumstances.” We do not think that there has been such a waiver.
The test to be applied is whether there was a deliberate tactical decision to forego this claim. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) . It appears to us that the issue was at least implicity brought before the state courts and that there is no basis for concluding that the failure to pursue the matter more forcefully in the state courts was an attempt to derive a tactical advantage. Prior to trial a motion to suppress the confession was made and considered. The state courts both at the trial and appellate level were put on notice that the admissibility of this confession was being challenged on due process grounds. Moreover, this objection was made at the earliest desirable point. Admittedly, the arguments concerning the inadmissibility of the confession were directed mainly at the failure to give the type of warnings later required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) . Still, as respondents point out, almost all the evidence upon which petitioner now relies was introduced at the original suppression hearing. These factual elements were put before the judge in the context of an attack upon the admissibility of the confession and the court had the opportunity to determine that the confession was involuntary in view of all the circumstances. Nor is it certain that this issue was not presented on direct appeal, even though the briefs were directed at the Miranda question. The Illinois Supreme Court apparently believed that it had considered the issue, since it later ruled that the post-conviction petition was barred by res judicata rather than by the doctrine of waiver which also bars relief under the Illinois Post-Conviction Hearing Act. See United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974).
This is not simply a case in which there was a failure to raise a certain argument or object to particular evidence in order to further an intended strategic maneuver. The filing of the motion to suppress is conclusive proof that there was no desire to allow the introduction of the confession. We do not find persuasive the fact that at trial Adams denied ever making the confession. The question before us is a legal one concerning the constitutionality of the confession. That question could have been presented to a court without infringing on the ability to deny the fact that the confession was ever given. Indeed, despite this denial a constitutional attack on the confession was entertained on direct appeal.
We are presented with an important claim that does “call into question the accuracy of the fact-finding process.” There was no tactical reason to avoid raising the contention in the state courts. Notice of objection to the confession was given at the appropriate time. The highest court in Illinois has indicated that the issue was in fact considered. There has been no deliberate by-pass of state remedies and petitioner is entitled to have a federal court finally consider the merits of this alleged constitutional deprivation.
II
We have determined that the ultimate question of the voluntariness of this confession is also before us. The district court did address the merits. An evidentiary hearing is unnecessary since there was one in state court on the post-conviction petition and the adequacy of that hearing is not being challenged. Further, the habeas corpus petition itself requests relief on the basis of the state record alone. Petitioner’s counsel has conceded that there is no additional evidence to be submitted. Accordingly, we have requested and received supplemental briefs discussing this question.
The facts relevant to this inquiry are as follows. The police, without a warrant, took the petitioner from his bed at about 1:00 a. m. on December 28, 1962 and placed him under arrest. He was then taken to a police station where, for at least some period of time, he was locked to a radiator. Several police officers questioned petitioner for the admitted purpose of getting a confession, if possible. However, petitioner was never informed of his right to remain silent or his right to have a lawyer present. At approximately 2:30 a. m. an assistant state’s attorney arrived at the police station with a court reporter. The assistant state’s attorney questioned Adams and his two co-defendants who had also been arrested. He then proceeded to take recorded statements from each of them in the form of questions and answers. Petitioner’s statement was the last to be taken and commenced at 5:10 a. m. A joint statement was also given beginning at 6:05 a. m. The assistant state’s attorney had not informed petitioner of his right to remain silent and his right to the assistance of counsel, although petitioner had stated that he could neither read nor write English and had only a third grade education.
At about 7:00 a. m. petitioner was transferred to the police department central detention facility. At about 1:00 p. m. he was transferred to the Criminal Courts Building and taken to the library where, at about 2:30 p. m., in the presence of a police officer and an assistant state’s attorney, he initialed and signed the confession after it was read aloud to him. Petitioner was finally taken before a judge on December 29, 1962.
It was later established that the petitioner had no prior police record. At the post-conviction petition hearing considerable evidence concerning the petitioner’s mental capacity was introduced. Petitioner’s intelligence quotient was found to be in the range of 56 to 62, indicating a person who is “mentally defective.” A trained behavioral scientist explained that one who is “mentally defective” would have defective comprehension of oral or written directions or communications, especially when under tension or in strained surroundings. Adams’ ability to depend on his memory was also impaired. A clinical psychologist described petitioner as a “very naive, simple man, who could very well, very easily be influenced, who is quite unsophisticated and not aware of relationships in the world.” He further testified that petitioner was “very cooperative but very docile.”
The test to be applied in cases such as this in which Miranda is not applicable is based on those “standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo . . . .” Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). The Supreme Court has recently summarized these standards in Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973):
In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, e. g., Haley v. Ohio, 332 U.S. 596, [68 S.Ct. 302, 92 L.Ed. 224]; his lack of education, e. g., Payne v. Arkansas, 356 U.S. 560, [78 S.Ct. 844, 2 L.Ed.2d 975] ; or his low intelligence, e. g., Fikes v. Alabama, 352 U.S. 191, [77 S.Ct. 281, 1 L.Ed.2d 246]; the lack of any advice to the accused of his constitutional rights, e. g., Davis v. North Carolina, 384 U.S. 737, [86 S.Ct. 1761, 16 L.Ed. 2d 895]; the length of detention, e. g., Chambers v. Florida, supra, [309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716] ; the repeated and prolonged nature of the questioning, e. g., Ashcraft v. Tennessee, 322 U.S. 143, [64 S.Ct. 921, 88 L.Ed. 1192]; and the use of physical punishment such as the deprivation of food or sleep, e. g., Reck v. Pate, 367 U.S. 433, [81 S.Ct. 1541, 6 L.Ed.2d 948]. In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v. Connecticut, supra, [367 U.S. 568] at 603, [81 S.Ct. 1860.] at 1879, 6 L.Ed.2d 1037]. (footnote omitted)
Thus, we must look to the merits of each individual factor, but ultimately the decision as to voluntariness should be based on an evaluation of the totality of all the circumstances.
We believe there are three elements which call into question the voluntary nature of this confession. The first is the undisputed fact that petitioner was never informed that he had a right to remain silent and a right to the assistance of counsel. The assistant state’s attorney failed to inform him of these rights although he was aware of how little education the petitioner had and how unlikely it was that he knew of these rights. This failure to inform petitioner of these rights is an important element in our equation regardless of the inapplicability of Miranda, since the fact “that a defendant was not advised of his right to remain silent or his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made.” Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). The weight to be accorded this fact is particularly great in light of petitioner’s lack of previous contact with the police.
The second factor concerns the timing of the interrogation. Petitioner was apparently awakened by the police. The questioning occurred during the middle of the night and petitioner most certainly suffered from lack of sleep. The clear purpose of this questioning was to get a confession if at all possible. The voluntary character of this desired confession is lessened by the hour of the day during which it was given.
The final and most substantial consideration involves the nature of petitioner himself. A significant doubt is cast over the confession of a man of such low intellect and limited education. While petitioner was capable of giving a voluntary confession, the expert testimony of his inability to understand communications and his docile nature necessitate a skepticism concerning the voluntariness of his confession.
The district judge, however, greatly discounted this psychological testimony because his reading of petitioner’s testimony at trial and at various hearings indicated that Adams’ answers were “always responsive and lucid,” even under cross-examination. We agree that it is proper to consider such testimony and our own reading of petitioner’s answers has convinced us that there is some merit to this conclusion. But what the court below has failed to take into account is the fact that at the time of this testimony petitioner was represented by counsel who undoubtedly prepared him. The clinical psychologist testified that Adams’ apparent recognition in court of the function of a warrant was not conclusive, since he could have been prompted to give an answer without real understanding. The undisputed results of objective intelligence tests are of overriding significance. Our concern is with petitioner’s abilities during a period in which he had not received the assistance of counsel and had no one to advise him. We believe the expert psychological testimony is helpful in this regard.
Indeed, the facts of this case are strikingly similar in this aspect to those in United States v. Hull, 441 F.2d 308 (7th Cir. 1971), where we relied heavily on the defendant’s limited mental capabilities in determining that his confession was involuntary. Hull was described as follows:
J. L. Hull is a 34 year old Negro who is mentally defective. His full-scale I.Q. is 54, and he has the mental age of an eight or nine year old child. He completed the third grade in school and is illiterate. Psychiatric experts termed him passive and easily led by a more dominant personality. Hull can follow instructions if they are repeated or paraphrased for him several times; otherwise he has a tendency to lose his attention and comprehension.
Based on that description we found that Hull “was ill-equipped to combat ‘the diverse pressures which sap or sustain his powers of resistance and self-control’.” The same must also have been true of Adams.
Viewing all these factors together has led us to conclude that petitioner’s confession was involuntary. Respondents address each consideration separately and argue that each is not necessarily sufficient in and of itself to support this conclusion. Our task is to consider the combination of all these elements. Even if we were to accept the proposition that no one factor is conclusive, we still must look to the totality. What we find is a confession given in the middle of the night by a tired, inex-perieneed, uneducated, docile, mentally defective man who was never even informed that he did not have to talk and that he was entitled to the aid of an attorney. Such a confession is not “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 281, 4 L.Ed.2d 242 (1960).
The judgment of the district court is reversed and this cause is remanded to the district court with direction that the writ issue unless the petitioner is given a new trial within 120 days of the date of the mandate of this court.
. For this court’s present view of when relief must be sought under the Illinois PostOonviction Hearing Act before a federal habeas corpus petition will be entertained see United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974).
. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).
. United States ex rel. Allum v. Twomey, 484 F.2d 740, 746 (7th Cir. 1973).
. While this evidence was based on tests and examinations given petitioner when he entered prison in 1964, we see no reason to question that the conclusions adequately portray petitioner’s mental capacity when he gave the alleged involuntary confession.
. 441 F.24 at 309.
. 441 F.2d at 312.
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_circuit | J | 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-Appellant, v. 20.53 ACRES OF LAND, MORE OR LESS, IN OSBORNE COUNTY, KANSAS, and City of Downs, State of Kansas, a municipal corporation, et al., Defendants-Appellees.
No. 72-1571.
United States Court of Appeals, Tenth Circuit.
May 15, 1973.
Dirk D. Snel, Atty., Dept of Justice (Walter Kiechel, Jr., Deputy Asst. Atty. Gen., Robert J. Roth, U. S. Atty., Roger K. Weatherby, Asst. U. S. Atty., and Jacques B. Gelin, Atty., Dept, of Justice, on the brief), for plaintiff-appellant.
Jerry W. Hannah, Topeka, Kan. (Lloyd Bloomer, Osborne, Kan., and George B. Collins, Wichita, Kan., on the brief), for defendants-appellees.
Before SETH, Circuit Judge, DURFEE, Senior Judge, United States Court of Claims, and MeWILLIAMS, Circuit Judge.
DURFEE, Senior Judge of the United States Court of Claims, sitting by designation.
DURFEE, Senior Judge.
In this eminent domain proceeding the United States filed a declaration of taking and complaint on March 3, 1966, to acquire fee simple title, perpetual flow-age easements, and lesser interests in property and municipal facilities belonging to the City of Downs, Kansas. These interests were being acquired for purposes of developing the Glen Elder Dam and Reservoir in north central Kansas. A Commission was appointed pursuant to Rule 71A(h), Fed.R. of Civ. P., to determine just compensation.
The declaration of taking specified upwards of thirty scattered property acquisitions, a number of which are clustered around the sewage treatment plant owned by Downs. This appeal by the United States is limited to that part of the judgment of the district court confirming the Commission’s award of $220,000.00 as compensation for the acquisition of interests in four parcels around the City’s sewage treatment plant. We reverse and remand.
The Government took fee simple title to the existing and only access road (Parcel F) to the sewage plant. The United States planned to build a substitute access road to run westward from the treatment plant and intersect with another road, also to be built and owned by the United States, which would run north to a public highway. The declaration of taking stated that the City “shall have the right to use” the north-south road from the public highway “as a means of access to” the substitute r.oad running westward from the treatment plant, and that the latter road “shall be conveyed to the City * * * upon its request.”
The existing effluent or outfall line from the treatment plant was also acquired by the Government by means of obtaining interests in the parcels which the line traversed (Parcels G, H) and by obtaining all right, title, and interest of Downs in portions of the effluent line. Pertinent here is also a small acquired tract (Parcel C’) to the southeast of the treatment plant.
The existing effluent line received treated sewage from the plant and conducted it by gravity to a discharge point along the north fork of the Solomon River. The Government planned to construct a protective dike along the river and an outlet works along the dike equipped to collect treated sewage and discharge it into the river. The declaration of taking provided that the United States “will construct, operate and maintain” a substitute effluent line running “to the outlet works to be constructed by the United States * * * ”, such operation and maintenance by the United States to continue “so long as the City * * * may require such in its disposal of sewage effluent.”
The district court adopted all of the findings and conclusions of the Commission without change or addition. Insofar as this appeal is concerned, the Commission found and concluded;
TRACTS P, G, H and C.
The Commission finds from the evidence that tracts F, G, H and C (sic) are so inter-related that they should be considered together. The Commission further finds from the undisputed evidence that prior to the taking, the City of Downs, Kansas was operating a primary and secondary sewage treatment plant in accordance with the rules and regulations of the Department of Health of the State of Kansas, and in all respects, in conformity with all statute laws of the state of Kansas governing the operation of sewage treatment plants. The Commission further finds that after the taking, the existing sewage plant was in effect destroyed and the rule of substitute facility, as instructed by the Court, should apply for the reason that there is no market data available for sewage treatment plants. The Commission further finds that the damages suffered by the city of Downs, Kansas, was the sum of $220,000.00.
Appellant, the United States, argues (a) that the Commission apparently awarded compensation for the taking of the entire sewage treatment plant, valuing the plant by means of the replacement cost all facilities including the value of a chlorination facility which never existed as a part of the original plant; (b) that in awarding compensation the Commission impermissibly went beyond the scope of the declaration of taking since only the treatment plant’s access road and effluent line were taken; (c) that the Commission was led astray by the district court, and the court overstepped its own jurisdiction, in instructing the Commission to consider whether or not the “city sewage system” had been “destroyed” by the takings; and (d) “the measurement of compensation for the Government’s relocation of a sewer line and access road was clearly erroneous” since all adequate substitutes had been provided.
The foremost error infecting these proceedings is that the Commission failed to comply with the reporting standards set forth in United States v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964). We cannot intelligently review the alleged errors because we do not know how the Commission (and court) arrived at the award of $220,000.00.
The Commission’s findings are to be accepted by the district court “unless clearly erroneous.” We in turn also accept the findings unless clearly erroneous. United States v. Brinker, 413 F.2d 733 (10th Cir. 1969). However, conclusory findings are alone not sufficient. Such findings are not reviewable by the “clearly erroneous” standard. Merz, supra, at 198, 84 S.Ct. 639. The Commissioners must show the pathway they took through the maze of conflicting evidence which at the very least consists of demonstrating the reasoning they used in deciding on the award, the standard of valuation they tried to follow, the line of testimony they adopted, and the measure of severance damages (if any) they used. Merz, supra, at 198, 84 S.Ct. 639. See generally, United States v. Corbin, 423 F.2d 821 (10th Cir. 1970); United States v. Evans, 380 F.2d 761 (10th Cir. 1967); Chandler v. United States, 372 F.2d 276 (10th Cir. 1967). Other than state generally that it was using the “substitute facility” rule, the Commission utterly failed to cast light on its pathway to this award.
The parties in this' proceeding have given us record references to testimony whereby we might fabricate a bridge to the conclusions of the district court and the Commission. That is not our job.
Since this condemnation proceeding has involved a difficult and unusual configuration of facts and issues and it appears that the controversy has generated much heat, it may be helpful to the court and Commission to review here a few basic principles.
I. It is elementary that how much or how little property the United States elects to take by condemnation is a legislative, not a judicial, question. Berman v. Parker, 348 U.S. 26, 35-36, 75 S.Ct. 98, 99 L.Ed. 27 (1954). The nature or extent of the interest to be acquired is not to be expanded by judicial fiat. Wilson v. United States, 350 F.2d 901, 906 (10th Cir. 1965). On the other hand, it is equally clear and elementary that where part of a single tract is taken, the owner’s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 87 L.Ed. 336 (1943), and cases therein cited. This is severance damage.5
II. The Supreme Court has long recognized the general rule that indemnity to the owner of condemned property is to be measured by the market value of the property. But the Court has also recognized that market value “may not be the best measure of value in some eases.” United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392 (1949). More specifically, in Brown v. United States, 263 U.S. 78, 83, 44 S.Ct. 92, 94, 68 L.Ed. 171 (1923), where the Federal Government had condemned municipal facilities, Chief Justice Taft concluded that “(a) method of compensation by substitution would seem to be the best means of making the parties whole.” See also Annotation 40 A.L.R.3d 143 et seq.
In the case at hand the district court instructed the Commission:
[T]he general principles applicable to an eminent domain taking of municipal facilities are well established. The taking may be justly compensated by payment of the costs of a substitute, so long as a full equivalent is afforded for the property taken. * * * A sewage disposal plant and sewage system of a city is a facility having no market value. * * *
A source of difficulty in this case has been created by the illusory intersection of the substitute facility rule and the severance damage rule. We believe the case of United States v. Board of Education of Mineral County, 253 F.2d 760 (4th Cir. 1958), offers some guidance. In that ease the Federal Government took approximately three of the eight acres of the Ridgely, West Virginia, High School. The highest and best use of the eight acres was for school purposes ; for these purposes the eight acres had no market value. The evidence was that the High School could not be properly operated with less than eight acres. Hence, the value of the entire eight acres “would be largely destroyed,” according to the evidence, if land were not acquired in substitution for the land taken by the Government. The court concluded: “Any reasonable man would say that where the government takes a part of the property necessary to the proper operation of a school, the government should make it possible for the school to acquire other property to use in substitution for the property taken.” 253 F.2d at 763. Similarly, where the Government takes a part of the property necessary to the operation of a sewage plant, the Government should make it possible for the sewage plant’s owner to acquire other property to use in substitution for the property taken.
III. In eminent domain proceedings, it is axiomatic that “a full and just equivalent shall be returned” to the condemnee. Monongahela Navigation Co. v. United States, 148 U.S. 312, 325, 13 S.Ct. 622, 37 L.Ed. 463 (1893). The owner “is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 708, 78 L.Ed. 1236 (1934). An issue in this case is whether or not the Government is obligated to compensate Downs for the value of a new chlorination plant. The plant is necessary in order to treat sewage discharged into recreational waters in compliance with enhanced water quality standards. We believe the cases, City of Eufaula v. United States, 313 F.2d 745 (5th Cir. 1963), and United States v. 531.13 Acres in Oconee County, 366 F.2d 915 (4th Cir. 1966), will provide some guidance to the district court on remand. We do not mean to intimate that the result in these cases must also obtain here.
We decline otherwise to pass upon the alleged errors raised by appellant until we have a full and proper report of the Commission before us.
In remanding, we think in this case it is appropriate to follow the procedure outlined in Merz, supra, at 200, 84 S.Ct. 639. We think the district court should have the opportunity under Rule 53(e)(2) to make its decision afresh, in light of this opinion. On remand, the district court’s informed discretion will be used to determine whether the matters should be resubmitted in whole or in part to the Commission, or whether the court itself should resolve the disputes on the existing records, or on those records as supplemented by further evidence.
Reversed and remanded.
. At the time of trial in November 1970, both the substitute access road from the treatment plant to the north-south intersecting road and the north-south road to the public highway had been built and were in use.
. As of the time of trial the effluent line had been rerouted and in use.
. Both parties have indicated in their briefs that the tract involved is “C’ ”, not “C”.
. Apparently the Commission concluded, and the court agreed, that the Government’s promise to provide substitute facilities should be given no weight in determining just compensation; or, that since the Government merely promised permissive use of the Federally owned and controlled substitutes, the substitutes were valueless. We do not actually know the reasoning of the Commission.
. Fed.R.Civ.P. 71A(h) and 53(e)(2).
. An argument of the Government upon this appeal is that the district court by instruction and orders repeatedly wrongly told the Commissioners that whether the “city sewage system” had or had not been “taken” was a factual question to be resolved by them. Although the district court’s instructions and orders could have been more clearly drawn to avoid any remote inference that the Commission was free to consider whether or not the entire sewage plant was taken, we think that the court was, perhaps inartfully and confusedly, doing no more than explaining to the Commission that it could consider severance damages. The court negated the aforementioned inference in its April 10, 1968 Ruling on Objections to Supplemental Instructions, which the court directed the Commission to consider when interpreting instructions. In that Ruling the court said: “[C]ertainly no award may be made for property not taken.”
. See Annotation, 19 L.Ed.2d 1361, 1367-1369.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_respond1_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 first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Bernard D. FAIR, Jr., Appellant, v. KORHUMEL STEEL AND ALUMINUM COMPANY, INC., Appellee.
No. 72-1421.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1972.
Decided Jan. 30, 1973.
Rehearing Denied March 15, 1973.
Jeremy C. McCamic, Wheeling, W. Va. (McCamic & McCamic, Wheeling, W. Va., on brief), for appellant.
Thomas B. Miller, Wheeling, W. Va. (Schmidt, Laas, Schrader & Miller, Wheeling, W. Va., on brief), for appel-lee.
Before BRYAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
CRAVEN, Circuit Judge:
This is an appeal from the dismissal of Appellant Fair’s common law negligence claim for damages against his employer, Korhumel Steel & Aluminum Company, Inc. As we read the district judge’s oral opinion, he reasoned that since Fair had not proved Korhumel guilty of fraud but, instead, of “sloppy” procedures in attempting to qualify under the West Virginia Workmen’s Compensation law, coverage resulted that would bar the negligence action. Applying West Virginia law, as we must in this diversity jurisdiction case, we conclude that fraudulent motivation is not the test. Because the undisputed facts show that Korhumel literally did nothing to bring itself within the Act, and there was no waiver by Fair of his negligence claim, we reverse and remand for a trial of the negligence action.
Fair was injured on March 22, 1967, while employed by Korhumel in its plant in West Virginia. An award totaling $2,832 was approved by the West Virginia Workmen’s Compensation Commission, and this amount was paid to Fair. The award was directed to be paid by:
National Steel Corporation
Korhumel Steel & Aluminum Company Division
2424 Oakton Street
Evanston, Illinois
There was then no such thing as Kor-humel Steel & Aluminum Company Division of National Steel.
Fair subsequently filed suit in district court against Korhumel alleging a common law tort action in negligence for his injuries. Korhumel asserted as defenses (1) its election and qualification to accept and participate in the scheme of the West Virginia Workmen’s Compensation Act, and (2) Fair’s waiver of any common law right by his prior acceptance of the compensation award.
The West Virginia Workmen’s Compensation Act provides that statutory compensation is the exclusive remedy available to an injured employee where his employer has elected to come within the Act’s coverage and has “complied fully” with the statutory scheme, including current payment of premiums. W.Va.Code Ann. § 23-2-6 (1966). The statute clearly sets out the steps necessary to obtain coverage. The first requirement, in the case of a foreign corporation (Korhumel was incorporated under the laws of Illinois), is the filing by the employer of a certificate showing that it has qualified to do business in West Virginia. The statute provides in part: “[N]o application of such foreign corporation employer shall be accepted by the commissioner until such certificate is filed . . . .” W.Va. Code Ann. § 23-2-1 (1966). Although Korhumel qualified to do business in West Virginia on November 20, 1964, no such certificate was ever furnished the Commissioner.
Unless qualified as a self-insurer (about which more later), an employer is required to make a deposit and pay periodic premiums into a workmen’s compensation fund in order to qualify. W.Va.Code Ann. § 23-2-5 (1966). Any personal injury claim by an employee against his employer is paid out of this fund. The amount of these periodic premiums is determined by the Commissioner, and it is based upon a percentage of the employer’s payroll and varies with the type of work and degree of risk. The Act further provides that failure to pay the specified premiums or make the required deposit automatically terminates the employer’s participation in the fund and deprives it of any protection afforded by the Act. W.Va.Code Ann. §§ 23-2-5, 23-2-8 (1966). Korhumel never made a deposit nor paid any premiums into the fund. Neither did it submit quarterly payroll reports — also required by the Act.
Failure to pay premiums as herein provided or to make the quarterly payroll reports required by the commissioner shall deprive the employer so delinquent of the benefits and protection afforded by this chapter, and shall automatically terminate the election of such employer to pay into the workmen’s compensation fund as herein provided, and such employer shall be liable to his employees as provided in section eight of this article . . .
W.Va.Code Ann. § 23-2-5 (1966).
An employer can become a “self-insurer,” however, and obtain coverage without paying premiums. W.Va.Code Ann. § 23-2-9 (1966). When an employer is designated a self-insurer, the amount of an award to an injured employee is determined by the Commission, but the award is actually paid by the employer. In order to become a self-insurer, the Act requires a finding of fact by the Commissioner that the employer is of sufficient financial responsibility. Additionally, the employer is required to post an acceptable bond with the Commissioner. W.Va.Code Ann. § 23-2-9 (1966). Korhumel never sought a determination by the Commissioner of its financial responsibility, and none was ever made. Neither did Korhumel post a bond in its corporate name.
Despite 100 percent failure to comply with the Act — either on a premium paying basis or as a self-insurer — Korhumel insists that sufficient steps toward enrollment were taken on its behalf by another company, National Steel Corporation. It appears that a Mr. Cramer, an employee of National Steel, Weirton Division, did contact the Commissioner in regard to qualifying Korhumel for coverage. The record is silent as to whether Korhumel ever authorized National Steel or Mr. Cramer to act for it. Mr. Cramer represented to the Commissioner that Korhumel was a “division” of National Steel, but the record does not support the representation. Indeed, even on appeal counsel are yet unable to disclose to us what, if any, relationship existed between Korhumel and National at the time of injury. All we know is that National Steel was a Delaware corporation and Korhumel was an entirely separate Illinois corporation. Under this misrepresentation, Korhumel was listed in 1965 as being included within the coverage of the existing workmen’s compensation account for National Steel. As a result of this erroneous listing, Korhumel gained these advantages: (1) it escaped payment of 90 percent of the premiums required of a company not a self-insurer; (2) even the 10 percent was paid at a K-6 classification rate (apparently National’s correct classification) of 70 cents rather than at the E-10 rate of $1.05, which would have been applied by the Commissioner if he had known Korhumel was a separate corporation and not a division of National; and (3) it escaped posting of the initial deposit required^ by law.
While mindful that the West Virginia Act should not be viewed with an overly technical eye, Mains v. J. E. Harris Co., 119 W.Va. 730, 197 S.E. 10 (1938), we find here such complete noncompliance by Korhumel as to require reversal of the order of the district court dismissing Fair’s common law action. Neither an employee nor an agent of Korhumel ever contacted the Workmen’s Compensation Commission. The only persons who had any correspondence with the Commissioner were employees of National Steel. The record discloses no agency relationship. Entirely through the unauthorized acts of others, Korhu-mel was included within the National Steel account as a “division” of that corporation, although it was not. On these facts it is clear that Korhumel failed to obtain coverage and is precluded from now raising the Act as a bar to Fair’s negligence action. To hold otherwise would require that we accord self-insured status to a corporation that has never shown that it has sufficient assets to protect its employees and has posted no bond — contrary to the letter and spirit of the West Virginia Workmen’s Compensation law. Or, alternatively, such a holding would require that we accord participating status to a corporation that has never directly or indirectly paid the initial deposit, and for whose benefit there was paid (apparently by National) only ten percent of premiums due, and even those at a cheaper rate than applicable to Korhumel.
These defaults are not technical. They go to the heart of the statute — the public policy of assuring that employees will be protected.
Our Brother Bryan assumes that Kor-humel’s failure to qualify under the Act never “jeopardized even slightly Fair’s security.” It is this viewpoint which divides the court.
One of the purposes of the Workmen’s Compensation law is indeed to assure indemnification. To allow an employer to elect after an accident whether there is workmen’s compensation coverage can diminish that assurance. For the reasons previously stated — that Korhumel did nothing to bring itself within the Act — it could have successfully resisted coverage under the Act.
In this particular case there were presumably sufficient corporate assets to make it profitable for Korhumel to prefer compensation coverage. But it is not always so. For example, in December 1972 there were press reports that 21 employees were killed at the Weirton Steel complex in West Virginia. Multiple claims could well exceed corporate assets, which is why, of course, a self-insurer under the Act must show that assets are sufficient to assure compensation.
We agree that technical deficiencies in complying with the Act should be disregarded, but we cannot approve the creation of a situation that permits an employer to choose, after the event, whether it will be advantageous to come within the Workmen’s Compensation Act.
Korhumel’s second defense, that Fair waived his common law right by accepting $2,832 tendered him as a workmen’s compensation award, is without merit. Fair accepted the money believing Korhumel was within the coverage of West Virginia’s Workmen’s Compensation law. Since it was not, his only claim against Korhumel was the common law claim he now seeks to prosecute. We think it clear that Fair did not waive his negligence claim by accepting money incorrectly tendered him as an award when the circumstances were that his employer knew the facts and he did not. United States v. Newton Livestock Auction Market, Inc., 336 F.2d 673, 677 (10th Cir. 1964); Pritt v. W. Va. Northern RR., 132 W.Va. 184, 51 S.E.2d 105, 116 (1948). As the West Virginia Supreme Court has said in another case involving acceptance of a compensation award, “As the plaintiff at the time of the injury was entitled to pursue only his remedy for damages at common law, the doctrine of estoppel by election of remedies is inapplicable.” Adams v. Kentucky & W. Va. Power Co., 102 W.Va. 66, 135 S.E. 662, 664 (1926). The West Virginia Act provides that when an employer is adjudicated not to be covered by the Act, “an accounting in accordance with the justice of the case shall be had of moneys received.”
On remand the district court will, of course, set off against any recovery obtained by Fair the amount of the award received by him.
Reversed.
. If any employer shall be adjudicated to be outside the lawful scope of this chapter, the chapter shall not apply to him or his employee; . . . and in every Such case an accounting in accordance with the justice of the case shall be had of moneys received .... W.Va.Code Ann. § 23-2-11 (1966).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer: |
songer_trialpro | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
ROBINETTE v. COMMISSIONER OF INTERNAL REVENUE.
No. 9473.
Circuit Court of Appeals, Sixth Circuit.
Dec. 8, 1943.
Clark J. Milliron, of Los Angeles, Cal., and T. G. Thompson, of Cleveland, Ohio (T. G. Thompson, of Cleveland, Ohio, on the brief), for petitioner.
Irving Axelrod, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Samuel H. Levy, and Irving Axelrod, all of Washington, D. C., on the brief), Tor respondent.
Before PUCKS, ALLEN, and McALLISTER, Circuit Judges.
HICKS, Circuit Judge.
Petition by Lenore S. Robinette, a transferee of the transferee of the assets of the taxpayer, Charles C. Cohn, deceased. It is to review a decision of the Board of Tax Appeals affirming the action of the Commissioner of Internal Revenue in assessing against petitioner a deficiency in income tax for 1918 due from the original transferor, Cohn, in the sum of $27,914.38, with interest.
The facts as stipulated and as found by the Board are briefly as follows:
Charles C. Cohn, a citizen of the United States, resided in the Philippine Islands from 1903 until 1919. He practiced law in Manila and his income as an attorney was derived from legal services performed in the Islands. He was then a married man and had a minor child.
On February 20, 1919, the taxpayer filed with the Collector of Internal Revenue for the Philippine Islands at Manila, a return of his income from all sources for 1918, and in June of that year he paid in pesos the tax shown to be due thereon in an amount equivalent to $1,667.06. In September 1920 he paid in pesos an additional assessment for 1918 in an amount equivalent to $1,635.63.
He filed no tax return for 1919 except as above stated.
In July 1919 the taxpayer returned to the United States and was a resident of San Francisco until his death in 1931. In 1919 he changed his 'name to Charles C. Cole and the Collector at Baltimore was notified of this change on August 28, 1923.
A son, Creswell C. Cole, received from the taxpayer’s estate assets worth in excess of $30,712.22. Creswell died on September 30, 1935, and his widow, petitioner here, received assets from his estate worth 'in excess of $30,712.22. The deficiencies which respondent assessed against petitioner were never assessed against either Charles C. Cole, Creswell C. Cole or their estates.
Other questions to one side, the taxpayer was liable for both a normal tax and a surtax upon his net income for 1918 under Sections 210 and 211(a), Rev. Act 1918, Ch. 18, 40 Stat. 1057, 1062. Every individual having the requisite income was liable for such taxes. Lawrence v. Wardell, 9 Cir., 273 F. 405, 409; Cotterman v. United States, 62 Ct.Cl. 415, 418. The Commissioner found them to be $31,207.07 and in assessing the deficiency he was given credit by virtue of Sec. 222(a) of the Act of 1918 in the sum of of $3,302.69 paid by him to the Collector at Manila. The taxpayer was not only liable for these taxes but because he had no legal residence or principal place of business in the United States (Sec. 227, Act of 1918) he was required to make return and pay them to the Collector at Baltimore.
Notwithstanding this plain provision, the petitioner contends that the taxpayer was not required to file any return for 1918 other than that filed with the Collector at Manila and that he was not required to pay any tax in addition to that paid to that Collector. Her position stems from her conception of the effect of Sec. 261 of the Act of 1918. The material portion of this section is as follows:
“Sec. 261. That in Porto Rico and the Philippine Islands the income tax shall be levied, assessed, collected, and paid in accordance with the provisions of the Revenue Act of 1916 as amended.
“Returns shall be made and taxes shall be paid under Title I of such Act in Porto Rico or the Philippine Islands, as the case may be, by (1) every individual who is a citizen or resident of Porto Rico or the Philippine Islands or derives income from sources therein * *
Petitioner points out that the taxpayer was a resident of the Philippine Islands in 1918; that he derived his income therein and that he made his return with the Collector at Manila as provided by Sec. 8(b) of the Revenue Act of 1916, 39 Stat. 761, and that the Collector there was the proper officer to receive his taxes as provided by Sec. 23 of the Revenue Act of 1916.
All this is clear enough. The taxpayer did pay the taxes levied and assessed against him in 1918 as a resident of the Philippine Islands in accordance with the provision of the Revenue Act of 1916, Sec. 23 as amended, to the effect that the administration of the law in the collection of the taxes imposed in the Islands should be by the appropriate Internal Revenue officers thereof, and that all revenue collected thereunder should accrue, intact, to the general Government thereof. And although the Act of 1916 was repealed as a general statute by the Revenue Act of 1918, it was continued in force for the assessment and collection of income taxes in Porto Rico and the Philippine Islands “except as may be otherwise provided by their respective legislatures.” Sec. 1400 of the Revenue Act of 1918, 40 Stat. 1149. In other words, it was continued in force for the assessment, levy and collection of taxes against that class of taxpayers of which the taxpayer was one, to wit, residents of the Philippine Islands, and the taxes when collected were appropriated to the governmental administration of the Islands.
But the Revenue Act of 1918 assessed both normal and surtaxes against a larger class of taxpayers than residents of the Philippine Islands and at higher rates and for the general governmental administration of the United States within which under that Act, for tax purposes, the Philippine Islands, in a geographical sense, were not included. It assessed these taxes against “every individual.” As pointed out in Lawrence v. Wardell, supra, 273 F. page 409, the comprehensiveness of the 1918 Act is as great as language can' make it. Although the taxpayer was a resident of the Islands he fell directly within that class of taxpayers, to wit, all individuals, i.e., citizens of the United States where-ever residing against whom the normal and surtaxes were levied and assessed as provided by Sections 210 and 211(a) of the Act of 1918, and because he had no legal residence or place of business in any collection district of the United States, he was required to make return and payment to the Collector at Baltimore. He could not make return and payment to the Collector at Manila, because, as pointed out, the Philippine Islands were not included for tax purposes within the term “United States,” as they had formerly been under the Revenue Act of 1916.
We tbink that it was the clear intention of Congress by the Act of 1918 to provide separate income taxes for the United States and the Philippine Islands and this conclusion has solid support in the provision [Sec. 222(a)] of the Act, that in computing the tax to be paid by a citizen of the United States, he shall be credited with any amount of income, war profits and excess profits taxes paid by him during the taxable year to any possession of the United States. Having failed to file his return with and pay his taxes to the Collector at Baltimore, as required by the Act of 1918, it follows that these taxes are still liable to assessment and collection unless barred by the statute of limitations of five years, found in Sec. 250(d) of the Revenue Act of 1921, Ch. 136, 42 Stat. 227, 265. But the five year period is not a bar because of another provision of the statute that in cases of a failure to file a return, the amount of tax due may be determined, assessed and collected, and a suit or proceeding for the collection thereof may be begun at any time after it becomes due.
Petitioner insists that the statute of limitations began, to run on February 20, 1919, when the taxpayer filed his return with the Collector at Manila, and that this proceeding against her was therefore barred within' five years thereafter, but petitioner’s handicap here is that the taxpayer failed to file a “required return” with the Collector at Baltimore (Rev.Act 1921, Ch. 136, supra) and no statute of limitations protected that failure.
The question with reference to interest arises. The deficiency found to be due from the taxpayer was $27,914.38. He would have been liable for this amount with interest from the date when it became due in 1918. If he had lived and the assets had not been transferred to petitioner he would have been liable for interest only from July 1, 1939, by virtue of Sec. 813(a) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, page 1154. In November 1936 the petitioner received assets of a greater value than the deficiency. If she had paid the amount of the deficiency on July 1, 1939, as she might have done, she would not have been liable for any interest. ' Se did not do this. She retained the assets for her own use, which, to the extent of the deficiency, belonged both in law and equity to the Government. She was therefore chargeable with interest from July 1, 1939, just as a taxpayer would have been so charged. See Sec. 280(a) (1) of the Revenue Act of 1926, 26 U.S.C. A.Int.Rev.Acts, page 212; Buzard v. Helvering, 64 App.D.C. 268, 77 F.2d 391, 396.
Laying to one side the question of whether there is statutory authority for the decision of the Board as to interest, nevertheless we cannot upset its holding. If we proceed upon the theory that the transferee was liable for any unpaid taxes of the transferor with interest only to the extent of the amount received, the burden was upon the Commissioner to show that petitioner was liable as a transferee. See Internal Revenue Code, Sec. 1119(a), 26 U.S.C.A.Int.Rev.Code, § 1119(a). The Commissioner carried this burden by proving that petitioner had received assets as a transferee in excess of $30,712.22. He thus made out a prima facie case and the burden of going further then rested upon petitioner. The value of the excessive assets, which she admitted having, was peculiarly within her knowledge and she should have shown this value if she wished to win on the question of interest. See Commissioner v. Renyx, 2 Cir., 66 F.2d 260; Hutton v. Commissioner, 21 B.T.A. 101, 103.
The decision of the Board of Tax Appeals is affirmed.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_numappel | 3 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SCOTT AND FETZER COMPANY (the Kirby Company Division), Plaintiff-Appellee, v. Virgil L. DILE, Individually and Virgil L. Dile and Barbara Jolene Dile, husband and wife, dba Railroad Freight, Railroad Salvage and Discount Freight; and T.H.E. California Corporation, an Arizona Corporation, dba Railroad Freight, Defendants-Appellants.
Nos. 79-3314, 79-3740.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 12, 1981.
Decided April 27, 1981.
David N. Ramras, Phoenix, Ariz., for Dile.
Barry L. Springel, Cleveland, Ohio, on brief; Irving Berger, Jones, Day, Reavis & Pogue, Cleveland, Ohio, argued, for Scott & Fetzer Co.
Before CHOY and REINHARDT, Circuit Judges, and KELLEHER, District Judge.
The Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.
CHOY, Circuit Judge:
This is a consolidated appeal from a preliminary injunction issued by the United States District Court and from a subsequent order finding appellant Virgil Dile in civil contempt. We reverse the issuance of the injunction, vacate the contempt judgment and remand for further proceedings.
I. Facts
Appellee Scott and Fetzer Company, the Kirby Company Division (“Kirby”), is engaged in the business of manufacturing and distributing electric vacuum cleaners and parts and accessories therefor. Appellant Virgil L. Dile (“Dile”), a resident of the State of Arizona has been engaged since 1965 or 1966, in the retail sale of various consumer products, both individually and through corporations owned or controlled by him. He has done business under various trade names.
Kirby sells its products to “authorized factory distributors” pursuant to written agreements which include a license to use Kirby’s trademarks. Although there appears to be some dispute as to whether Dile was ever a factory authorized distributor of Kirby, he was not so authorized at all times relevant in this action.
Over the years Kirby has had written commitments with purchasers of vacuum cleaners to completely rebuild vacuum cleaners sold to them for a specified maximum fee, on condition that only the original purchasers request the rebuilding. It is not the company’s policy to rebuild and sell any used Kirby vacuum cleaners.
Dile has been engaged in the retail sale of rebuilt vacuum cleaners bearing Kirby’s trademark since 1971 or 1972. This case arose from Dile’s sale of these rebuilts and specifically from his advertising in connection with such sales.
Kirby brought suit against Dile alleging trademark infringement and unfair competition. The district court held a show cause hearing on March 21 and 22, 1979 on Kirby’s request for a preliminary injunction. On April 13,1979, the district court entered a preliminary injunction, part 3 of which required Dile to include in any advertising which used the word “Kirby” (a registered trademark owned by Kirby) a disclaimer of any affiliation with Kirby. Dile appealed from the preliminary injunction.
On May 9, 1979, Kirby filed a motion in the district court to hold Dile in contempt for violating the disclaimer injunction. Kirby requested that as partial relief for the violation the district court bar any use of the word “Kirby” in Dile’s advertising. The district court issued an order to show cause and held a hearing on the contempt motion on May 31, 1979.
On July 12, 1979, the district court entered an order in which it (a) held Dile in civil contempt, (b) ordered Dile to pay the expenses incurred by Kirby in the contempt proceeding, (c) ordered Dile to pay a fine of $500, and (d) ordered the cessation of all use of the word “Kirby” in any manner whatsoever in Dile’s advertising.
On August 3, 1979, Dile filed a motion that the district court reconsider the July 12 order with respect to the contempt finding, the $500 fine, and the non-use injunction. On October 10, 1979, after reconsideration, the district court entered an order (a) affirming the contempt finding, (b) striking the $500 civil contempt fine, and (c) denying Dile’s request to strike the non-use injunction. On November 8,1979, Dile filed a notice of appeal from the October 10 order. On January 17,1980, this court consolidated this appeal with the appeal from the original preliminary injunction.
II. Appeal from the Preliminary Injunction
A. Order to Show Cause Hearing
This action was commenced on March 18, 1978. The order to show cause hearing on Kirby’s request for a preliminary injunction was not held until March 21, 1979. During this period of more than one year, extensive discovery took place.
At the order to show cause hearing Kirby called 23 witnesses in support of its claim. Twenty of the 23 witnesses were not listed as witnesses by Kirby in its answers to interrogatories. All 20 were permitted to testify over Dile’s objection. In addition, of the 16 persons listed by Kirby as witnesses in the answers to interrogatories, Kirby called only three to testify at the hearing.
One of the undisclosed witnesses was an expert witness, John Lackner, a Kirby plant manager. His testimony concerned a'Kirby rebuilt that was sold by Dile to an investigator hired by Kirby. He testified that a substantial number of components of the rebuilt were not genuine Kirby parts and as to the safety hazards posed by the examined machine. He was allowed to testify despite the fact that his name was not listed in response to an interrogatory which expressly asked whether any experts had been retained by Kirby. Two of the 20 witnesses not listed were process servers. Their testimony was not used by Kirby as part of its case in chief. One witness was the private investigator hired by Kirby. Other witnesses included persons who had purchased rebuilt Kirby vacuum cleaners from Dile believing them to be new Kirby products.
Kirby also offered 51 exhibits in support of its claim. Twenty-six of the 51 exhibits were not listed as exhibits in Kirby’s answers to interrogatories. All of the exhibits were received over Dile’s objection.
Dile argues that the district court abused its discretion by permitting Kirby, over objection to call the 20 witnesses to testify at trial and to introduce the 26 exhibits when notice of their identity and intention to use them was first given after trial began and when the witnesses and exhibits were not listed in response to interrogatories. We agree. These actions by the district judge denied Dile his right to prepare effective cross-examination and to present rebuttal witnesses and exhibits. We note that the need for preparation for effective cross-examination is even more compelling where expert testimony is involved.
In addition it appears that Kirby used these undisclosed witnesses and exhibits to support a previously undisclosed theory of the case. Kirby’s theory of the case, as shown in its answers to interrogatories, was that Dile committed trademark infringement and unfair competition by using the trademark “Kirby” in his advertising and by making various alleged misleading representations in his advertising and sales receipts. At the hearing Kirby first revealed a new theory of the case; that is, that Dile allegedly engaged in trademark infringement and unfair competition by retaining the trademark “Kirby” on the rebuilt vacuum cleaners where such rebuilt vacuum cleaners were not assembled in their entirety by Kirby with “genuine” Kirby parts (manufactured by or for Kirby). In addition, at the hearing Kirby first raised an issue concerning the quality of Dile’s rebuilt Kirby vacuums apparently arguing that Dile’s rebuilt Kirby vacuums were inferior to Kirby’s new vacuums and, thus, by retaining the “Kirby” trademark on such rebuilt vacuums Dile was injuring Kirby’s good name and reputation.
The Supreme Court has noted that
Rules 26 to 37, the discovery-deposition provisions of the Federal Rules, were intended to insure “proper litigation”, Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), by making the “trial less a game of blind-man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed. 1077 (1958).
Goldman v. Checker Taxi Co., 325 F.2d 853, 855 (7th Cir. 1963). Rule 26(e) of the Federal Rules of Civil Procedure specifically requires supplementation of responses to interrogatories. The rule states in relevant part:
(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement' his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
Kirby explains its failure to supplement by maintaining that it was not until shortly before the March order to show cause hearing that it discovered the trademark infringement and unfair competition associated with the rebuilt vacuums. By a letter to Dile’s counsel dated March 8, 1979 (which was read into the record), Kirby offered to supplement its prior interrogatory answers to identify the witnesses and exhibits it intended to use at trial. Since Kirby had made a request for supplementation to Dile, Kirby’s offer to supplement was predicated on a simultaneous supplementation. Dile never responded to this letter and Kirby claims that if he had he would have received the information that disclosed Kirby’s position with respect to the rebuilts. This letter indicated nothing about a new theory in the case, however, and furthermore Rule 26(e) of the Federal Rules of Civil Procedure does not require such a simultaneous supplementation of answers to interrogatories.
While the district court has wide discretion concerning discovery and evidentiary issues at trials and hearings, this discretion is not limitless.
A rule of thumb as to the meaning of the abuse of discretion standard provides that the trial court’s exercise of discretion should not be disturbed unless there is “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.”
Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).
We find that, considering all the factors and circumstances of this case, the district court’s actions constituted an abuse of discretion.
B. Dile’s Deposition
A dispute arose between the parties over the deposition of Kenneth A. Hook, Kirby’s in-house counsel, and over Kirby’s noticing of a second deposition of Dile. Dile failed to appear for the deposition and the district court held him in contempt and precluded him from testifying at the order to show cause hearing as a punishment for contempt pursuant to Rule 37 of the Federal Rules of Civil Procedure. Dile contends that this order constituted an abuse of the district court’s discretion. Our holding on the previous issue makes it unnecessary to review this order.
III. Appeal from Contempt Finding and Order Modifying the Injunction
A. Modification of Injunction
Due to our reversal of the order granting the preliminary injunction, it is unnecessary for us to reach the issues concerning the order modifying the injunction. Since the injunction itself has been invalidated, the modification also falls.
B. Contempt Judgment
The district court found Dile to be in civil contempt. Contrary to the general rule regarding criminal contempt, a civil contempt judgment may fall if the underlying injunction is invalidated. The Supreme Court stated in United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947), that “[t]he right to remedial relief falls with an injunction which events prove was erroneously issued.”
Several other circuits have held specifically that a civil contempt judgment is invalidated if the underlying injunction is determined to be invalid. These courts have distinguished between “coercive” civil contempt and “remedial” civil contempt in their analysis, but have come to the conclusion that neither can survive the invalidation of the underlying injunction.
The order finding Dile in contempt was clearly “civil” contempt. Kirby asked that Dile be held in criminal contempt but the court specifically refused to so hold. In addition, it appears that the contempt order is of the “remedial” nature as its purpose was to compensate Kirby for the costs incurred in the contempt hearing (the court originally fined Dile $500 but, on Dile’s request to reconsider, changed the order to require a $500 fine upon the next violation). The contempt judgment is for remedial purposes and, therefore, must fall as a result of our decision invalidating the underlying injunction. See United States v. United Mine Workers, supra, at 295, 67 S.Ct. at 696.
IV. Conclusion
Under all the facts and circumstances of this case, we find that the district court abused its discretion in allowing Kirby to introduce at the hearing the undisclosed witnesses and exhibits and to use a new theory of the case. The granting of the preliminary injunction is REVERSED, the contempt judgment is VACATED, and the case is REMANDED for further proceedings.
. Dile does not rebuild the Kirby vacuum cleaners himself but rather purchases rebuilt Kirby vacuum cleaners from the Palomar Vacuums Company.
. Paragraph 3 of the preliminary injunction provides:
3. Defendant shall include ih any advertisement and/or commercial which uses the word “Kirby” or depicts a Kirby Product, either orally, visually and/or in writing, a statement in clearly legible and/or audible form that the seller “is not affiliated or connected with, or authorized by, the manufacturer of the Kirby vacuum cleaner to sell or service that product.” If the word “Kirby” is used orally, then the aforesaid statement shall be oral. If the word “Kirby” is written, then the aforesaid statement shall be written in the same type, style and size as that used for the word “Kirby.” If a Kirby Product is depicted, then the aforesaid statement shall be prominently written. With respect to television commercials, if the aforesaid statement is required to be' in writing it shall remain continuously visible on the screen without any accompanying written material for no less than three (3) seconds.
. On November 26, 1979, Kirby moved this court for a dismissal of the November 8 appeal on the ground that the court lacked jurisdiction since Dile failed to file a timely notice of appeal from the July 12 order. On January 9, 1980, the court denied the dismissal motion.
. Our jurisdiction over the appeal from the order granting the preliminary injunction is found in 28 U.S.C. § 1338(a), as to trademark infringements, and 28 U.S.C. § 1338(b) as to the unfair competition claims since they are joined with substantial and related claims under the Trademark Laws of the United States. The court has jurisdiction over the appeal from the order refusing to modify the injunction, under 28 U.S.C. § 1292(a)(1).
. The letter, dated March 8, 1979, read as follows:
David N. Ramras, Esq. 1110 East McDowell Road Phoenix, Arizona 85006
Re: The Scott & Fetzer Company v. Virgil Dile
Dear Mr. Ramras:
As you may recall, we each propounded interrogatories concerning the witnesses to be presented at the show cause hearing and the subject matter of their expected testimony. We are prepared at the present time to supplement our responses in that regard. However, in view of the fact that identical directions for supplementation were in our respective inter- . rogatories, we are .entitled to the same information from you. Therefore, we believe that the appropriate procedure is for supplemental answers to be exchanged simultaneously. Please advise me in writing at your earliest convenience as to whether you are prepared to exchange such supplementations, and if you are, the time at which you propose to make the exchange.
You may also recall that we each propounded interrogatories concerning the exhibits to be introduced at the show cause hearing. We are still in the process of determining what exhibits we intend to proffer and are willing to make the same type of exchange as set forth above when we complete our determination.
Very truly yours,
Barry L. Springel
cc: G. Mark Cord, Esq.
. “Violations of an order are punishable as criminal contempt even though the order is set aside on appeal .... ” United States v. United Mine Workers, 330 U.S. 258, 294, 67 S.Ct. 677, 696, 91 L.Ed. 884 (1947).
. The most significant difference between criminal and civil contempt concerns the purpose and character of the sanction that is imposed in each. The purpose of criminal contempt is to vindicate the authority of the court, and the order is punitive. In contrast, the objective of a civil contempt decree is to benefit the complainant and the sanction imposed is remedial. Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911).
. Smith v. Sullivan, 611 F.2d 1050, 1054 (5th Cir. 1980); Blocksom and Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. 1978) (civil contempt may be defended on the ground that the underlying order was erroneously issued); ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir. 1978) (an order of civil contempt cannot stand if the underlying order on which it is based is invalid); Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1342-45 (3d Cir. 1976).
Question: What is the total number of appellants in the case? Answer with a number.
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.
TENNESSEE VALLEY AUTHORITY et al. v. ASHWANDER et al. ASHWANDER et al. v. TENNESSEE VALLEY AUTHORITY et al.
Nos. 7764, 7812.
Circuit Court of Appeals, Fifth Circuit.
July 17, 1935.
See, also, 9 F. Supp. 800.
No. 7764:. James Lawrence Fly, Gen. Sol., Tennessee Valley Authority, and William C. Fitts, Jr., both of Knoxville, Tenn., John Lord O’Brian, of Buffalo, N. Y., and Wm. H. Mitchell, of Florence, Ala., for appellants.
Forney Johnston and Jos. F. Johnston, both of Birmingham, Ala., for appellees.
No. 7812: Forney Johnston, of Birmingham, Ala., for cross-appellants.
James Lawrence Fly, Gen. Sol., Tennessee Valley Authority, and William C. Fitts, Jr., both of Knoxville, Tenn., John Lord O’Brian, of Buffalo, N. Y., Wm. II. Mitchell, of Florence, Ala., John E. Delony, Jr., of Tuscumbia, Ala., Perry W. Turner, C. A. Bingham, J. T. Stokely, and W. Logan Martin, all of Birmingham, Ala., and Courtland Palmer, of New York City, for cross-appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
Writ of certiorari granted 56 S. Ct. 145, 80 L. Ed. —.
BRYAN, Circuit Judge.
By contract dated January 4, 1934, the Alabama Power Company, a corporation engaged in the manufacture, transmission, and distribution of electricity, agreed to sell such of its transmission lines as extend from Wilson Dam at the Muscle Shoals plant in Alabama into seven Alabama counties, to the Tennessee Valley Authority (TVA), a corporate agency of the United States, created by the Act of Congress of May 18, 1933, 48 Stat. 58, 16 USCA § 831 et seq. The TVA agreed to pay the purchase price of $1,-150,000 upon delivery. The Alabama Power Company further agreed that it would offer its distribution systems within the territory above named for sale to the respective municipalities in which such systems are located at prices which it was willing to accept; and that it would cooperate with the Electric Home & Farm Authority (EHFA), a government corporate agency created to finance sales of electrical appliances, in the sale of such appliances. The TVA, after waiting three months for the negotiation and consummation of sales of the urban distribution systems, was to have the right to furnish electric' power to any and all such systems regardless of whether the Alabama Power Company had sold them to the municipalities. On May 21, 1934, the Alabama Power Company entered into an agreement with EHFA to act as the latter’s agent in the collection of installments due on the purchase price of electrical appliances sold by retailers to individual customers. On August 9, 1934, the Alabama Power Company, not having sold any of its distribution systems to the municipalities, granted to TVA an option to purchase them; but on January 25, 1935, after this suit was filed, TVA gave notice that it had elected not to exercise that option.
On September 13, 1934, this suit to enjoin performance of the above-mentioned contracts was brought by a minority of the preferred stockholders of the Alabama Power Company, after they had formally but unsuccessfully demanded that the company itself institute suit to rescind those contracts.
The decree of the District Court, entered after final 'hearing, adjudged the contracts of January 4 and May 21 to be in furtherance of illegal proprietary operations by TVA, and ' ordered them annulled. It enjoined seventeen municipal 'defendants, which were under contract to receive electric power from TVA for use in the area served by the Alabama Power Company, from accepting or expending federal funds for the construction of city electric light plants, holding that these contracts were entered "into in aid of TVA’s illegal proprietary operations; and further enjoined them and the remaining municipal defendant, the city of Athens, which owns its distribution system, from purchasing electric power from TVA, on the ground that TVA was engaged in illegal competition with the Alabama Power Company. The TVA, EHFA, and city of Florence appeal from the decree. The plaintiffs below have taken a cross-appeal, contending that the decree should have included a declaratory judgment in order to prevent TVA from attempting to renew the option contract of August 9, which it is said was not exercised because of the pendency of this suit, or from engaging in divers other illegal operations not specifically enjoined.
The district judge made the following, among other, findings of fact: The United States acquired the Muscle Shoals property on the Tennessee river and built thereon Wilson Dam, an auxiliary steam plant, and two nitrate plants, for war purposes. The existence of these facilities for the manufacture of war materials constitutes a valuable national asset. Wilson Dam unaided by other power development, with its eight hydro-electric generators installed by the War Department, is capable of producing 50,000 kilowatts continuously, except during low stages of water; and the steam plant has a continuous capacity of 60,000 kilowatts. In 1934, 68 per cent, of the power generated at Wilson Dam was used for governmental purposes. Other dams under construction, which like Wilson are of the high-dam type, are, upstream, the Norris and the Wheeler; and, downstream, the Pickwick. The release of waters from Norris Dam will increase the continuous capacity of Wilson Dam by 40,000 kilowatts, and Norris Dam itself, if generators are installed, is capable of producing 73,-000 kilowatts. If the Wheeler and the Pickwick Dams are used only as reservoirs, according to present • plans, the total continuous capacity of Wilson and Norris Dams in combination, without the aid of the steam plant, will be 202,000 kilowatts. The construction of Wilson Dam also provides a depth of 9 feet of slack water over the Muscle Shoals rapids, thereby eliminating a serious obstruction to navigation. Navigation will be further improved by the completion of Wheeler and Pickwick Dams. Storage of water by means of reservoirs is essential to adequate flood control on the Tennessee river. Wilson Dam was completed in 1925 at a cost of $50,000,000. It probably is not capable of producing more "water power than would be needed for the national defense in time of war, but in time of peace the power it makes available is so much in excess of the government’s needs for it for national defense and for navigation that, without the installation of any other dam, there is a surplus even after supplying the transmission lines which TVA agreed to purchase from the Alabama Power Company. There has been no sale or contract for sale of the remaining surplus. The sale of electric energy generated at Muscle Shoals in excess of that required for operating the locks and' servicing government properties can be made to produce profits which could be applied toward the reimbursement of the cost of Wilson Dam, or expended in the construction of new dams. It is not the purpose of TVA to limit the production of electric power to that needed by the government in manufacturing war materials and providing for navigation, but its declared policy is to utilize to the fullest extent possible all the electric energy which the Wilson and other dams are capable of producing, by supplying first governmental needs, and then by selling the surplus to users of electricity, in competition with public utility corporations engaged in the manufacture, transmission, and distribution of electricity. In disposing of surplus power TVA intends to obtain revenue, but at the same time to undersell its private competitors in order to establish a “power yardstick” and to demonstrate the advantages of public over private ownership of electric light plants. Upon these findings of fact, which may safely be assumed to be correct since none of them is challenged, the district judge concluded as a matter of law that the Congress has no constitutional power to confer upon TVA, or any federal agency, the right to enter into such a contract as that of January 4, and that the contract of January 4, since it was void as to TVA, was void as to the Alabama Power Company. The district judge, having reached this conclusion, consistently held that the dependent contract of May 21 was also void. The plaintiff stockholders may be dismissed from further consideration, inasmuch as they are entitled to assert only the rights of the Alabama Power Company; and so we need to consider only the effect of the principal contract of January 4 upon the rights of the contracting parties. The district judge, having held that TVA was assuming to exercise authority which no act of Congress could constitutionally confer upon it, did not pass upon the contention made on behalf of the Alabama Power Company that the TVA Act of 1933 was invalid on the ground that it purports to delegate legislative authority. It was' the view of the district judge that TVA, while it had the implied right to dispose of any surplus electric power unintentionally created in the exercise of a bona fide effort to make such power only as was needed for the manufacture of war materials and for serving the necessities of navigation, had and could have no constitutional authority intentionally to create and sell any additional surplus. He therefore enjoined further performance of the contract of January 4, not for any inherent infirmity, such as fraud, duress, or inadequate consideration, but solely because he was convinced that the program of TVA for the manufacture and disposal of surplus electric power bore no substantial relation to any lawful governmental function. It is the contention of TVA that as an agency of the United States it has the constitutional right and statutory authority to dispose of all the electric power, in excess of such of it as may be needed from time to time for the production of war materials and for purposes of navigation, that the Wilson Dam operated to its full capacity can be made to produce.
Wilson Dam is the property of the United States. It was constructed by authority of section 124 of the National Defense Act of 1916, 39 Stat. 215 (50 USCA § 79), for the purposes of supplying water power for the production of munitions of war and improving navigation on the Tennessee river. The right to erect and maintain it, in the exercise by Congress of the war and commerce powers conferred upon it by the Constitution, is so clear that it is conceded. The government by virtue of its lawful ownership of Wilson Dam owns also the water power inevitably created by the construction of that dam. Kaukauna Co. v. Green Bay, etc., Co., 142 U. S. 254, 12 S. Ct. 173, 35 L. Ed. 1004; Green Bay, etc., Co. v. Patten Paper Co., 172 U. S. 58, 19 S. Ct. 97, 43 L. Ed. 364; United States v. Chandler-Dunbar Co., 229 U. S. 53, 33 S. Ct. 667, 57 L. Ed. 1063. Congress, in the exercise of its power, under article 4, § 3, cl. 2, of the Constitution, to dispose of property belonging to the United States, may dispose of water power created at Wilson Dam as freely as it may of any other government property. It never heretofore has been held that the right of disposal exists only as to such part as is accidentally produced in excess of the amount strictly necessary for purposes of national defense or of navigation; but always that right has been supposed to extend to all the excess or surplus. Water power is property sui generis; unlike most other forms of property it cannot be put away and kept for future use or sale, but it must be either converted into electricity and used up as it is released from storage or allowed to go to waste. If the water stored at Wilson Dam is permitted to pass through the penstocks, in the language of counsel for TVA, “there is gold in it,” but if allowed to flow unhindered over the 'dam, “it is forever gone.” As a practical matter, there would be no market for the incidental or accidental surplus created in the honest effort to produce only enough electricity to supply strictly governmental requirements; for no user, public or private, of electricity would become a customer unless assurance could be given of a firm and dependable supply. That the surplus or any of it need not be allowed to go to waste, bat that it and all of it may rightfully be disposed of and the proceeds applied toward reimbursement of the cost of a publicly-owned dam is well settled. Kaukauna Co. v. Green Bay, etc., Co., supra; United States v. Chandler-Dunbar Co., supra; State of Arizona v. California, 283 U. S. 423, 51 S. Ct. 522, 75 L. Ed. 1154. In the last-cited case in 283 U. S. 423, at page 455, 51 S. Ct. 522, 526, it is said: “As the river-is navigable and the means which the act provides are not unrelated to the control of navigation, * * * the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress.” And so here, in our opinion it cannot successfully be maintained that there ‘is no reasonable or substantial relation between the production and disposal of the surplus hydro-electric power available at Wilson Dam and the exercise of the war and commerce powers conferred upon Congress. It is within the province of Congress to adopt any reasonable means, whether of lease or sale, for disposing of the surplus. The use of transmission lines to facilitate sales cannot fairly be said by the courts to be unreasonable or inappropriate. Of course, it is true that the government of the United States cannot engage at will in private business, but it by no means follows that it cannot sell property which it owns, even though in doing so it may enter into competition with other public or private owners of property. It is not doubted that each of the several states holds in perpetual public trust dominion over the navigable waterways within its borders; but it is equally true that the rights of the states in navigable waters are subject to the. supreme war and commerce powers of the general government. We live under a dual government of divided powers, not under two separate governments of • conflicting powers. The' power over navigable waters granted to the federal government is not in conflict with, but is necessarily superior to the dominion over such waters which the states reserved to themselves. Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23. It leads nowhere to say that the federal government - in exercising ■ its constitutional powers acts within “state domain,” since at the same time it is acting within its own domain as well. We conclude that the decree below cannot be sustained on the theory of a lack of constitutional power.
The inquiry remains whether the necessary statutory power has been conferred on the TVA. The Tennessee Valley Authority Act of 1933 was passed for the purposes, among others, “of maintaining and operating the properties now owned by the 'United States in the vicinity of Muscle Shoals, Alabama, in the interest of the national defense * * * to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins.” Section 1, 16 USCA § 831. The act purports in separate sections to confer on TVA the power to construct dams, reservoirs, and transmission lines, to furnish nitrogen products for military purposes; to allot to the War Department the water power necessary to operate locks, lifts, or other facilities in aid of navigation, and to produce, distribute, and sell electric power, “as herein particularly specified.” The “particular specifications” are to sell the surplus power not used in the operation of locks and other works to states, counties, municipalities, partnerships, or individuals. The act further provides for the construction of Norris Dam, and that the President may from time to time recommend to Congress such legislation as he deems proper for flood control, navigation purposes, generation of electric power consistent with flood control and navigation, the proper use of marginal lands, the proper method of reforestation in the drainage basin, and the economic and social well-being of the people living in the Tennessee River Basin. The right was reserved to the government, in case of war or national emergency declared by Congress, to take possession of all or any part of the property described or referred to in the act “for the purpose of manufacturing explosives or for other war purposes.” Section 20, 16 USCA § 831s. The sections of the act are declared to be separable, to the end that the unconstitutionality of any one section may not affect the validity of ány other.
The act is unobjectionable from a constitutional standpoint in so far as it undertakes to confer on TVA the power to take charge of and operate Wilson Dam, and to distribute and sell surplus electricity to municipalities as well as to utility companies. “And the fact that purposes other than navigation [and national defense] will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of Congressional power.” State of Arizona v. California, supra. It does not appear that TVA in respect of its operations at Wilson Dam is doing or proposes to do anything more than is authorized by the act. This being so, its motives are immaterial. The section of the act (section 23, 16 USCA § 831v) which provides that the President shall make recommendations to Congress as to the future policy of developing the Tennessee Valley is unobjectionable, as in any event the President may make such recommendations to Congress as he thinks proper. The act is not subject to the criticism that Congress has abandoned all purposes of navigation and national defense, since navigation is now being improved, and in the event of war the right is reserved to use the Muscle Shoals property exclusively for national defense.
The Rivers and Harbors Act of 1930, 46 Stat. 927, authorized a project for the permanent improvement of the main stream of the Tennessee river to a navigable depth of 9 feet in accordance with the recommendation of the Chief of Engineers in House Document No. 328, of the Seventy-first Congress, Second Session. Because there was no recommendation in that House document for high-type dams, or for their location, it is contended' that the Tennessee Valley Authority Act undertakes to delegate legislative power with reference to the location and type of the Norris, Wheeler, and Pickwick Dams. As we have just seen, the act itself provides for the location of Norris Dam, but whether specifically enough as to type is as we think immaterial; for Wilson Dam alone, without any assistance from Norris, Wheeler, or Pickwick Dam, has a surplus after serving the transmission lines which it agreed to purchase from the Alabama Power Company. Besides, the Alabama Power Company has no standing to object even though these additional dams have not been properly authorized by Congress. Frothingham v. Mellon, 262 U. S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. It is not a riparian owner, or the owner of a dam site which the government is assuming to take; nor has it any such special interest as would entitle it to object to proposed improvements in aid of the national defense or of navigation. United States v. Chandler-Dunbar Co., supra, 229 U. S. 53, at page 73, 33 S. Ct. 667, 57 L. Ed. 1063.
On the whole case, our conclusion is that the decree of the district judge was erroneous. We therefore have no occasion to consider whether the Alabama Power Company, if that decree had been affirmed, would have been entitled to a declaratory judgment.
Appellees take nothing by their cross-appeal. On the direct appeal the decree is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Question: What is the number of judges who concurred in the result but not in the opinion of the court?
Answer: |
songer_state | 14 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Dennis LUTHER, Respondent-Appellant, v. Vincent MOLINA, Petitioner-Appellee.
No. 80-1436.
United States Court of Appeals, Seventh Circuit.
Argued June 13, 1980.
Decided Aug. 6, 1980.
Patty Merkanp Stemler, Washington, D. C., for respondent-appellant.
Arthur H. Grant, Arthur H. Grant, Ltd., Chicago, for petitioner-appellee.
Before FAIRCHILD, Chief Circuit Judge, WOOD, Circuit Judge, and LARSON, Senior District Judge.
The Honorable Earl R. Larson, United States Senior District Judge for the District of Minnesota, sitting by designation.
LARSON, Senior District Judge.
I.
On November 19, 1975, Vincent Molina pled guilty to distribution of heroin. He was given a five year prison term and a three year special parole term. After serving three years of his sentence, Molina was paroled on December 13, 1978. One condition of his release was that he attend a drug treatment program. He failed to follow this requirement and was placed in a halfway house in the fall of 1979. He did not attend therapy sessions at the halfway house and was found to be in violation of the house rules on December 18, 1979. On this same day, Molina’s parole officer informed him that a parole revocation hearing had been requested. On December 20 Molina left the halfway house and did not return. He had discussions with the parole authorities about surrendering, but he did not do so. A warrant was issued for Molina to be retaken and he was arrested and imprisoned on March 10, 1980, for violating the conditions of his parole. Molina had a preliminary interview with a parole officer on March 19, 1980. This hearing resulted in a finding of probable cause on one charge of violating parole conditions. Molina’s final parole revocation hearing was held on May 1, 1980. On May 27, 1980, the Parole Commission found that a parole violation had occurred, but returned Molina to the supervision of his parole officer.
On March 17, 1980, after he had been imprisoned, Mr. Molina filed a petition for a writ of habeas corpus in federal district court. In the petition he alleged that: (1) he had not violated his parole conditions; (2) his parole officer had made misrepresentations to make it appear that Molina had violated his parole conditions; (3) his parole officer continually harassed Molina; and (4) Molina had not been given enough time to appeal the decision to commit him to the halfway house. On March 20, 1980, the district court held a hearing on the petition. Although the district court stated that it would not consider the merits of Molina’s parole revocation, it did find that it had jurisdiction under the habeas statute to entertain a request for bail by an arrested parolee. The district court then ordered Molina released on a personal recognizance bond.
It is important to note that Molina sought no change in the revocation procedures, nor did his petition raise any constitutional or statutory objections to those procedures. The government appealed the grant of bail, asserting that the district court lacked the power to order bail for a parolee who is incarcerated pending revocation; or that even if the district court did have such power, it was improperly exercised here.
Two potential jurisdictional problems are presented. The first is whether such a bail order is final and therefore appealable. See 28 U.S.C. §§ 1291, 2253; Stachulak v. Coughlin, 520 F.2d 931, 933 (7th Cir. 1975), cert. denied, 424 U.S. 947, 96 S.Ct. 1419, 47 L.Ed.2d 354 (1976). Mr. Molina was claiming only the right to be released during the pendency of revocation proceedings. He was awarded the relief he sought. Neither he nor the district court contemplated any further action on the petition. Under these circumstances there was a final order in the habeas corpus proceeding and this Court has jurisdiction to consider the appeal.
The second and more perplexing jurisdictional problem is that of mootness. The Parole Commission argues that even if the issue presented here is moot as to Molina, it is “capable of repetition, yet evading review,” and therefore can be decided, although technically moot. See Securities & Exchange Commission v. Sloan, 436 U.S. 103, 109, 98 S.Ct. 1702, 1707, 56 L.Ed.2d 148 (1978). To come within this rule the challenged action must be too short in duration to be fully litigated prior to its cessation and there must be an expectation that the complaining party will again be subjected to the protested action. Board of Trade v. Commodity Futures Trading Commission, 605 F.2d 1016, 1020 (7th Cir. 1979), cert. denied, - U.S. -, 100 S.Ct. 1866, 64 L.Ed.2d 281 (1980).
Mr. Molina’s revocation proceedings are over, and it appears very likely that in most cases the revocation process will have run its course before full review of a bail order, including a possible appeal to the Supreme Court, could be obtained. Typically, then, bail orders will be too short in duration to be fully litigated before they expire. The second requirement is clearly met here. The Parole Commission states that it is repeatedly presented with this problem. It can reasonably be expected that parolees will continue to seek bail from the courts if they believe it will be granted even when the Commission refuses to release them before a revocation hearing.
II.
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that the due process clauses of the United States Constitution require that certain minimum procedures be followed when parole is revoked. See also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In 1976, Congress, through the Parole Commission and Reorgánization Act, 18 U.S.C. §§ 4201, et seq., revamped the parole system for federal prisoners. 18 U.S.C. §§ 4213-15 contain provisions relating to parole revocation. The United States Parole Commission has also issued regulations regarding revocation proceedings. See 28 C.F.R. §§ 2.44, et seq.
If a parolee is alleged to have violated his parole the Commission under § 4213 may either summon the parolee to a § 4214 revocation hearing or issue a warrant and retake the parolee. See 28 C.F.R. § 2.44. Of course, the question of release arises only when the Commission elects to retake and incarcerate the parolee. See 28 C.F.R. § 2.49(d). Section 4214(a)(1)(A) provides that the parolee is entitled to a “preliminary hearing . . . without unnecessary delay, to determine if there is probable cause to believe that he has violated a condition of his parole.!’ The parolee is informed at the end of the hearing whether probable cause is believed to exist. 28 C.F.R. § 2.48(d). If probable cause is found, § 4214(a)(l)(A)(i-iv) states that the Commission:
“may restore any parolee to parole supervision if:
(i) continuation of revocation proceedings is not warranted; or
(ii) incarceration of the parolee pending further revocation proceedings is not warranted by the alleged frequency or seriousness of such violation or violations;
(iii) the parolee is not likely to fail to appear for further proceedings; and
(iv) the parolee does not constitute a danger to himself or others.”
It is apparent that Congress intended to give the Parole Commission great latitude in making decisions relative to revocation. In fact, 18 U.S.C. § 4218(d) states that:
“Actions of the Commission pursuant to paragraphs (1), (2), and (3) of section 4203(b) shall be considered actions committed to agency discretion for purposes of section 701(a)(2) of title 5, United States Code.”
Section 4203(b)(3) provides that:
“The Commission, by majority vote, and pursuant to the procedures set out in this chapter, shall have the power to—
* * * * * j *
(3) modify or revoke an order paroling any eligible prisoner.”
Chapter 7 of title 5 of the United States Code governs judicial review under the Administrative Procedure Act. 5 U.S.C. § 701(a)(2) states that “This chapter applies except to the extent that — . (2) agency action is committed to agency discretion by law.” The effect of § 4218(d) is therefore to insulate all Commission decisions relating to parole revocation from judicial review under the APA. This includes the Commission’s decision to retain a retaken parolee in prison pending final action on revocation of his parole.
The exclusion of judicial review under the APA does not completely eliminate the possibility of habeas corpus relief, but it does indicate that courts must grant such relief only in extremely limited circumstances. Although the writ of habeas corpus is available to any person in federal custody, 28 U.S.C. § 2241(c)(1), the purpose of the writ is to provide a means to secure release from illegal detention. Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973); Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969). Imprisonment of parolees pending revocation is committed to the Parole Commission’s discretion; therefore generally this incarceration must be regarded as legal.
Even action committed to agency discretion, however, may be challenged because it contravenes applicable constitutional, statutory or regulatory provisions. Board of Trade v. Commodity Futures Trading Commission, supra, at 1021 n.6; Coppenbarger v. Federal Aviation Administration, 558 F.2d 836, 838 (7th Cir. 1977). This rule applies to the Parole Commission as it would to any other agency. Tedder v. United States Board of Parole, 527 F.2d 593, 594 n.1; Briney v. United States Parole Commission, 434 F.Supp. 586, 589 (M.D.Fla. 1977).
There are two situations in which a parolee detained during revocation proceedings might properly be granted habeas corpus relief, including bail. The first is when the petition alleges, and the court finds, that the incarceration itself does not comport with constitutional or statutory requirements. An example would be a claim that it would violate equal protection to deny bail to parolees awaiting revocation while making it available to probationers. Another example would be a showing that the Commission is not exercising its discretion at all; that its action in denying release is so arbitrary that due process rights are violated. A final example would be an allegation that the preliminary hearing was not conducted quickly enough to adhere to the constitutional or statutory requirements. If the district court found such claims to be valid, bail might be one form of relief which could be awarded. It would seem, however, that the preferable type of relief would be to order the Commission to correct the constitutional or statutory deficiency in its functioning. Release, whether outright or on bail, would rarely be necessary or appropriate.
The second situation where habeas relief could be awarded is when some other aspect of the revocation procedure is attacked as unconstitutional or contrary to statute or regulation. Here, too, it is conceivable that in very extreme circumstances release might be necessary to fully effectuate the habeas remedy.
Any time a court considers granting bail to a parolee who is detained pending a revocation hearing, it is potentially usurping authority Congress has delegated to the Commission. Before a district court orders bail, a proper respect for the system Congress has established requires that the parolee show that he has requested release from the Parole Commission and has been denied. In addition, bail should not be allowed unless at a minimum the requirements of § 4214(a)(l)(A)(i-iv) are met.
The rule set forth in this opinion will severely restrict the power of the district courts to grant bail to parolees held during revocation proceedings. This standard, however, gives recognition to Congress’ desire to allow the Parole Commission wide discretion in these matters, while at the same time providing the possibility of relief to those parolees who may truly be “illegally” detained.
REVERSED.
. It is also possible that a bail order might fall within the collateral order exception to the finality rule. See Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).
. Cf. Marchand v. Director, 421 F.2d 331, 334 (1st Cir. 1970). There the parolee was the “complaining party.” He had been unconditionally released and the court found that the possibility of his again being affected by the issue was too speculative to warrant application of this exception to the mootness doctrine.
. The problem of how to interpret the language “without unnecessary delay” may be crucial to the legality of a parolee’s detention. Morrissey v. Brewer required that the preliminary hearing take place “as promptly as convenient.” 408 U.S. at 485, 92 S.Ct. at 2602. Chief Justice Burger, the author of the Morrissey opinion, undoubtedly borrowed this language from Hyser v. Reed, 318 F.2d 225, 243 (D.C.Cir.1963), which he also wrote. As explicated by the suggested amendments to the then Parole Board’s regulations, id. at 245, Chief Justice Burger seemed to be contemplating an almost immediate hearing; one which would occur even before the parolee was transported to federal prison.
The legislative history of the parole statute suggests that Congress was greatly concerned about the implications of incarcerating a parolee during the revocation process. The bill originally proposed by the House called for a preliminary hearing “as soon as possible” and did not envision reincarceration until after probable cause had been found. See 121 Cong.Rec. 15706, 15713; H.R.Rep.No. 184, 94th Cong., 1st Sess. (1975). The Senate substitute allowed immediate imprisonment, and is the source of the “without unnecessary delay” language. See S.Rep.No. 369, 94th Cong., 1st Sess. (1975), U.S.Code Cong. & Admin.News 1976, p. 335. Even though the Senate bill allowed detention before probable cause was found, the Senate Report recognized that:
“Because a new period of incarceration, even if only 24 hours in length, may cost a parolee his employment, and further jeopardize his chances for rehabilitation, the detention of an alleged violator is a serious matter and must be dealt with in a manner which clearly recognizes the degree of loss to be suffered.” Id. at 18, U.S.Code Cong. & Admin.News 1976, p. 339.
The sectional analysis of the bill comments that:
“The timing of the preliminary hearing is particularly crucial; even if probable cause is not found, if a parolee is held in jail awaiting his hearing for more than one or two days, his job will probably be lost and his reintegration efforts badly disrupted.” Id. at 25-26, U.S.Code Cong. & Admin.News 1976, p. 347.
It appears that the Senate contemplated a hearing within a very short time after detention. The Senate language was adopted in the final bill worked out in conference and the conference report states that the intent of the conferees was that “the Commission should minimize the disruption of the parolee’s life in any revocation proceeding.” H.R.Conf.Rep.No. 838, 94th Cong., 2d Sess. 33 (1976), U.S.Code Cong. & Admin.News 1976, p. 365.
It is possible that a ten day delay between detention and the preliminary hearing does not meet either constitutional or statutory requirements. Of course, delay may be caused by conditions beyond the Commission’s control, such as a request by the parolee for counsel at the hearing.
. 28 C.F.R. § 2.48(e) contains substantially the same language, but in addition § 2.49(d) provides that:
“A parolee retaken on a warrant issued by the Commission shall be retained in custody until final action relative to revocation of his release, unless otherwise ordered by the Regional Commissioner under § 2.48(e)(2).”
Hopefully this regulation is not an indication of a Commission presumption or policy against release. Such a policy might not accord with Congressional intent. See n.3, supra, at pp. 74, 75.
Parole Commission regulations state that if no probable cause is found at the preliminary hearing, the Regional Commissioner will review this finding as expeditiously as possible and a decision to release the parolee shall be implemented without delay. 28 C.F.R. § 2.48(d)(1). Therefore, if the probable cause hearing is held very quickly the parolee would suffer only brief detention if there is no merit to the parole violation charges.
. See 122 Cong.Rec. 5164 (remarks of Rep. Drinan). Congress several times indicated that it intended to codify existing limits on judicial review of actions relating to parole.
. See, e. g., United States ex rel. Taylor v. Brierton, 458 F.Supp. 1171, 1174 (N.D.Ill.1978). But see, e. g., United States ex rel. Derecynski v. Longo, 368 F.Supp. 682, 688 (N.D.Ill.973), aff’d mem., 506 F.2d 1403 (7th Cir. 1974).
This listing of possible claims is not intended to be exhaustive, nor is any comment on the merits of any example intended. Courts should beware of frivolous and repetitively litigated claims used solely in an attempt to gain bail. After Morrissey and the revision of the parole statute it is unlikely that many legitimate claims about the parole revocation process exist.
. See, e. g., United States ex rel. Napoli v. New York, 379 F.Supp. 603, 606 (E.D.N.Y.1974).
. See n.3, supra, at pp. 74, 75.
. See 122 Cong.Rec. 5163 (remarks of Rep. Kastenmeier) (if_ Commission fails to meet deadlines, remedy would be to seek mandamus under 28 U.S.C. § 1361); Smith v. United States, 577 F.2d 1025, 1028 (5th Cir. 1978).
. A parolee has no constitutional right to release or bail before a revocation hearing. Galante v. Warden, 573 F.2d 707, 708 (2d Cir. 1977); United States ex rel. Vitoratos v. Campbell, 410 F.Supp. 1208, 1211 (N.D.Ohio 1976); Burgess v. Roth, 387 F.Supp. 1155, 1162 (E.D.Pa. 1975). See In re Whitney, 421 F.2d 337, 338 (1st Cir. 1970).
. Courts have traditionally recognized an ancillary power to order bail in any petition for a writ of habeas corpus. Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972); Baker v. Sard, 420 F.2d 1342, 1343 (D.C.Cir.1969). The standard for exercise of this power, however, is also very narrow. See Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); Baker v. Sard, supra; see also Calley v. Calloway, 496 F.2d 701, 702 and n.1 (5th Cir. 1974); Pihakis v. Thomas, 470 F.Supp. 721, 722 (S.D.N.Y.1979).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_numresp | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Ferris L. JOHNSON and Jettie L. Johnson, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 78-2562.
United States Court of Appeals, Seventh Circuit.
Submitted March 4, 1980.
Decided March 24, 1980.
Ferris L. Johnson, Mundelein, 111., for petitioners-appellants.
Stuart E. Seigel, IRS, Washington, D. C., M. Carr Ferguson, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee.
Before FAIRCHILD, Chief Judge, TONE and CUDAHY, Circuit Judges.
PER CURIAM.
The petitioners, Ferris L. Johnson (hereinafter Johnson) and Jettie L. Johnson (party to this case only because she signed the petitioners’ joint return), appeal from a decision of the Tax Court. The Tax Court upheld a determination by the Commissioner of Internal Revenue disallowing Johnson’s deduction of $1,500 contributed to an individual retirement account (IRA), Internal Revenue Code § 219(b)(2)(A)(i), 26 U.S.C., and imposing a 6% excise tax for excess contributions to an IRA, I.R.C. § 4973. We affirm and adopt the opinion of the Tax Court, T.C. Memo 1978 — 426, 37 T.C.M. (CCH) 1763, as our own, with the following additional comments.
The facts are stipulated and may be restated briefly. In 1975 Johnson worked for three employers. The first two employers did not have pension plans covering Johnson. The third company, FMC, had a qualified pension plan which covered Johnson from the beginning of his employment with FMC, in August 1975, through the rest of the year. Earlier in 1975, prior to joining FMC, Johnson deposited $1,500 in an IRA, which he claimed as a deduction on his 1975 income tax return.
On these facts Johnson argues he is entitled to the claimed deduction, relying on his interpretation of an informal I.R.S. publication and his claim that Congress intended to allow him the deduction. As the Tax Court’s opinion shows, Johnson may not rely on an informal I.R.S. publication, if the tax statute denies the deduction. And the clear language of the statute denies the deduction. See n.2 supra.
But even if the language of the statute were not so clear, Congress’ intent regarding a situation like Johnson’s is expressed unmistakably in the legislative history of § 219(b)(2):
For example, an individual who has contributed to a retirement account may change jobs in mid-year and become an active participant in a qualified plan of his new employer during that year. In this case, a retirement savings deduction is not to be allowed and the contributions made to an individual retirement account will be excess contributions.
H.Rep.No.93-807, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin. News, pp. 4639, 4670, 4795 (emphasis added). The Senate Report contains a similar example. S.Rep.No.93-383, 93d Cong., 2d Sess. (1973), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 4890, 5016.
Further buttressing the Commissioner’s reading of § 219(b)(2) is the purpose behind the statute. Congress enacted § 219(b)(2) to prevent situations in which taxpayers would obtain double tax benefits by setting aside in an IRA the maximum portion of their income allowed and deferring tax on that income, while for the same year deferring tax on employer contributions to a qualified pension plan. See H.Rep.No.93-807, supra, [1974] U.S.Code Cong. & Admin. News at pp. 4793-94; Orzechowski v. C.I.R., 592 F.2d 677, 678 (2d Cir. 1979). That is precisely the situation in which Johnson found himself. Thus the Tax Court was correct in holding that Johnson was not entitled to the claimed deduction and that the contribution to the IRA was an excess contribution subject to the 6% excise tax under I.R.C. § 4973.
The judgment of the Tax Court is affirmed and the clerk of this court is directed to enter judgment accordingly.
. After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a “Statement as to Need for Oral Argument.” See Rule 34(a), Fed.R.App.P.; Circuit Rule 14(f). Johnson has filed such a statement and requested oral argument in this case. Upon consideration of that statement and the briefs and record, the request for oral argument is denied. Circuit Rule 14(f)(3).
. Seciion 219(b)(2)(A)(i) provides in pertinent part:
(b) Limitations and restrictions.—
(2) Covered by certain other plans. — No [IRA] deduction is allowed . . . for an individual for the taxable year if for any part of such year—
(A) he was an active participant in—
(i) a [qualified pension] plan described in section 401(a) which includes a trust exempt from tax under section 501(a).
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_circuit | B | 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.
John P. O’CONNELL, R. A. Gallo and Charles Doyle, etc., et al., Plaintiffs-Appellees, Wayne W. Delaney, Dorrence E. Neu, Glen L. Thompson and John A. Bish, etc., et al., Intervenors-Plaintiffs-Appellees, v. ERIE LACKAWANNA RAILROAD COMPANY, a corporation, Defendant, and Brotherhood of Railroad Trainmen, an Unincorporated Association et al., Defendants-Appellants.
No. 244, Docket 31809.
United States Court of Appeals Second Circuit.
Argued Jan. 3, 1968.
Decided March 5, 1968.
Lee Leibik, Chicago, 111. (Ruth Wey- and, Chicago, 111., on the brief), for plaintiffs-appellees and intervenorsplaintiffs-appellees.
Arnold B. Elkind, New York City, for defendants-appellants.
Before LUMBARD, Chief Judge, MOORE and FRIENDLY, Circuit Judges.
LUMBARD, Chief Judge:
Defendants appeal from a judgment which found strict union shop clauses in a railroad collective bargaining agreement void and enjoined the appellants from requiring membership in the appellant union as a condition of continued employment. Appellees successfully argued on motion for preliminary injunction before Judge Herlands, 268 F.Supp. 397 (S.D.N.Y.1967), and on motion for summary judgment and a permanent injunction before Judge Palmieri, that the union shop clause appellants negotiated with the railroad violates the clear language of Section 2, Eleventh of the Railway Labor Act, 45 U.S.C. 152, Eleventh, and that the union and railroad could not lawfully condition employment upon membership in appellant union even though the union is the sole bargaining agent for all of the railroad’s employees. Jurisdiction is based upon 28 U.S.C. § 1337 and the Declaratory Judgment Act, 28 U.S.C. § 2201.
Appellants concede that if the words of Section 2, Eleventh of the Railway Labor Act are given their natural meaning, the agreement is invalid. However, they ask the court to avoid “the melancholy irrationalism of interpreting subsection (c) literally.” We agree with Judge Herlands that there is no compelling indication of legislative intent contrary to the clear words of the statute, nor are the results of construing the words as they were written so absurd as to require the strained construction for which appellants contend. We affirm.
The suit was brought by the Switch-men’s Union- of North America, AFL-CIO, and three yard service employees of the Erie Lackawanna Railroad Company on behalf of the more than 500 members of the Switchmen’s Union employed by the Erie Lackawanna against defendant-appellant Brotherhood of Railway Trainmen and Erie Lackawanna.
Prior to the merger of the Delaware, Lackawanna & Western R.R. Co. and the Erie Railroad in 1960, plaintiff Switch-men’s Union had been the recognized bargaining representative of the yard foremen, helpers and switch-tenders employed by the Lackawanna Railroad. Appellant Brotherhood represented these same crafts and classes on the Erie Railroad.
Following enactment of the Union Shop Amendment to the Railway Labor Act in January 1951, both unions entered union shop contracts with the railroads with which they had collective bargaining agreements. They incorporated into the contracts the language of Section 2, Eleventh of the Railway Labor Act as amended, 45 U.S.C. 152, Eleventh (1964), and construed the union shop provisions so that membership in either Switchmen’s Union or Order of Railway Conductors satisfied the membership requirement of the Brotherhood’s contract and membership in the Brotherhood satisfied the membership and requirement of the Switchmen’s contract.
When the two railroads merged in 1960, the National Mediation Board conducted an election among all the yard service employees of the merged railroads. The Brotherhood won from the Switchmen’s Union by 43 votes out of a total of 1943 votes cast. In a representation election in November 1967 the Brotherhood received 941 votes to the Switchmen’s Union’s 695. From 1960 until March 1967, appellant Union and defendant railroad construed and applied the union shop provisions of the contract so that membership in either the Switch-men’s Union or Order of Railway Conductors satisfied the membership requirement.
On March 14, 1967 the Erie Lackawanna and appellant entered a collective bargaining agreement which provided:
“It is agreed, as a condition of continued employment, that within sixty calendar days following the beginning of such employment, all conductors, ticket collectors, baggagemen, and trainmen of the Erie Lackawanna Railroad Company, former DL&W District, yard service employees engaged in yard service in the New York Terminal Yards * * * represented by the Brotherhood of Railroad Trainmen (Eastern District) shall become and remain members of the said Brotherhood: Provided, that this agreement shall not require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership has been denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership in the Brotherhood of Railroad Trainmen.”
On April 4,1967 the same parties entered a similar contract with respect to employees of the Erie District requiring them to become and remain members of appellant union as a condition of continued employment.
In granting a preliminary injunction against enforcement of this union shop provision, Judge Herlands found that the union shop agreements entered in 1967 violated the Railway Labor Act because they failed to permit employees to satisfy the membership requirements of the contract through membership in any union national in scope admitting to membership employees within the crafts or classes covered by the First Division of the National Railroad Adjustment Board. 268 F.Supp. 397 (SDNY 1967). After the preliminary injunction was granted, the Order of Railway Conductors and Brakemen and four of its members suing on behalf of the more than 225 members of the Order employed by the Erie Lackawanna were granted leave to intervene. On July 25, 1967, Judge Palmieri granted plaintiffs’ motion for summary judgment and subsequently issued a permanent injunction. He denied defendants’ cross-motion for summary judgment and entered judgment for plaintiff on appellant’s counterclaim.
We believe that the legislative history of the section shows that it was meant to permit membership in any union national in scope admitting to membership employees within the crafts or classes covered by the First Division of the National Railroad Adjustment Board to satisfy the union shop requirement of a contract pursuant to section 2, Eleventh of the Railway Labor Act.
The Seventh Circuit recently has reached the same conclusion, Birkholz v. Dirks, 391 F.2d 289 (7th Cir. Feb. 12, 1968).
In 1934 the railway unions agreed to amendments to the Railway Labor Act which prohibited all union shop agreements in order to reduce the strength of company unions. S.Rep.No. 2262, 81st Cong., 2d Sess., pp. 2-3 (1950); U. S. Code Congressional Service 1950, p. 4319; Hearings on H.R. 7789 before Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., pp. 3-4, 7-8, 16-17 (1950). See Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 489, 77 S.Ct. 421, 1 L.Ed.2d 480 (1957). By 1950 with the virtual elimination of company unions, the situation had changed so that twenty-one railway labor organizations, acting through the Railway Labor Executives Association, sponsored a bill to permit railway unions to enter union shop agreements similar to those authorized under the National Labor Relations Act, 29 U.S.C. §§ 157, 158.
The bill which was originally introduced, S. 3295, 81st Cong., 2d Sess., H.R. 7789, 81st Cong., 2d Sess. (1950), contained only one limitation: that the contracting labor organization must not deny any employee membership or expel him because of membership in any other labor organization. George M. Harrison, spokesman for the Association, testified that the reason for the provision was to permit an employee to retain membership in the union representing the craft or class in which he was mainly employed after temporary promotion or demotion to a different craft or class. He said:
“Unlike most collective-bargaining representatives in outside industry, there are those in the railroad industry which recognize and protect the rights of employees who, because of the nature of their work, move back and forth across craft or class lines, and consequently move from the rules and working conditions of one collective-bargaining agreement to another. Good examples are those employees in the firemen’s craft or class and those in the engineers’ craft or class. The ordinary line of promotion for a fireman is to the position of engineer, and in a reduction of forces the engineer returns to a fireman’s position. These two crafts or classes usually are represented by different organizations. Conceivably, either the firemen’s or engineers’ organizations, or any other organization concerned with the movement of employees back and forth from one craft or class to another, could deny membership to employees who are members of another labor organization, and under a union-shop agreement endeavor to compel a carrier to discharge an employee whom the union would not accept because of his membership in another union.
“[I]t was deemed advisable to make this restriction absolutely clear so that employment could not be denied because a union refused to accept an employee into membership because he belonged to another union. That is the purpose of the phrase on lines 14 and 15 of page 2.”
Hearings on S. 3295 Before a Subcomm. of the Comm. on Labor and Public Welfare, 81st Cong., 2d Sess., 18-19. See also Hearings on H.R. 7789 before the Comm. on Interstate and Foreign Commerce, 81st Cong., 2d Sess., 13.
However, this wording still created a problem for the railroad operating unions and they opposed the bill because it would have permitted a union to demand that employees working in the craft or class which the union represented belong to the union which was their bargaining representative as well as to the union to which they already belonged. As Mr. Justice Harlan said in Penn. RR v. Rychlik, 352 U.S. 480, 490, 77 S.Ct. 421, 426, 1 L.Ed.2d 480 (1957):
“[T]he hearings on the bill revealed a problem, peculiar to the railroad industry, in establishing the union shop. Labor in this industry is organized largely on craft rather than industrial lines. Engineers, firemen, trainmen, switchmen, brakemen, and conductors, for example, each are separately organized for the purposes of bargaining. And normally different unions represent different crafts; thus, on the same railroad, firemen might be represented by the Brotherhood of Firemen and Enginemen, and engineers by the Brotherhood of Locomotive Engineers. Yet seasonal and other factors produce a high degree of job mobility for individual employees in the industry, that is, of shuttling back and forth between crafts. For example, a fireman may be temporarily promoted to engineer for a short time, or a conductor might have to serve temporarily as brakeman. Under the ordinary union-shop contract, such a change from craft to craft, even though .temporary, would mean that the employee would either have to belong to two unions — one representing each of the crafts — or would have to shuttle between unions as he shuttles between jobs. The former alternative would, of course, be expensive and sometimes impossible, while the latter would be complicated and might mean loss of seniority and union benefits.”
Defendant Trainmen’s Union proposed an amendment to the bill to provide for inter-craft mobility without dual-unionism:
“provided that when two or more crafts or classes are closely related as respects the work performed by each and employment rights in more than one of them are held by the same employee, or promotions from one of such crafts or classes to another are had, the requirement for membership shall be satisfied by membership in the organization of the employee’s choice, which is the duly designated or recognized craft or class representative of any one of them.”
Hearings on S. 3295 at 68-69; Hearings on H.R. 7789 at 32-33. Rejection of appellant’s proposal and later adoption of the different language contained in Section 2, Eleventh (c) is a strong indication that Congress did not intend the result which appellant urges upon us.
While the bill was reported to both the Senate and the House without any provision for inter-craft mobility, S.Rep. No. 2262, 81st Cong., 2d Sess. (1951), H.R.Rep. No. 2811, 81st Cong., 2d Sess. (1951), members of the committees which had considered the bills met with representatives of the Railway Labor Executives’ Association and the American Federation of Labor and agreed that when the bills were presented on the floor the committees would also offer an amendment stating,
“Provided further, that no such agreement shall require membership in more than one labor organization;” 96 Cong.Rec. 15735 (Senate 1950); 96 Cong.Rec. 17052 (House 1951).
In presenting this amendment to the Senate, Senator Hill stated,
“An employee could belong to as many different unions as he wished to belong to. But he cannot be required to belong to one. If he belongs to one, he meets the provisions of the statute, and he cannot be required to pay dues to or to belong to more than one union.”
96 Cong.Rec. 15736. Four of the operating unions, including the Brotherhood of Railway Trainmen and the Order of Railway Conductors, opposed the bill as amended. The Switchmen’s Union supported the bill as amended. Consideration of the bill was postponed while the unions opposing the bill were given an opportunity to agree upon an amendment. 96 Cong.Rec. 16189 (1950). Three of the four unions agreed to support the bill if amended to included the language now contained in Section 2, Eleventh (c). 96 Cong.Rec. 16261, 16330 (1950). Only the Brotherhood of Locomotive Engineers opposed adoption of the bill. Their opposition was based upon a belief that the bill would “guarantee that the young man who has served his apprenticeship as a locomotive fireman shall never be required to become a member of the Brotherhood of Locomotive Engineers.” 96 Cong.Rec. 17052 (1951).
On December 7, 1950 Senators Taft and Hill offered the amendment drafted by the Brotherhood of Locomotive Firemen and Enginemen, the Order of Railway Conductors and Brotherhood of Railroad Trainmen and it was adopted by the Senate the same day. 96 Cong.Rec. 16268 (1950). Senator Holland noted that the debate over the amendment had given notice to the Senate that the amendment made membership in any union among the operating brotherhoods sufficient. 96 Cong.Rec. 16322 (1950). The Senate passed S. 3295, as amended, on December 11, 96 Cong.Rec. 16378 (1950). On January 1, 1951 the House agreed to consider S. 3295 in place of H.R. 7789, a similar bill. The debate in the House makes it clear that the Representatives understood the bill to make membership in any of the unions sufficient. Representative Scott, a member of the Interstate and Foreign Commerce Committee, said, “[The bill] provides that in transportation groups such as engineers, firemen, and so forth, membership in any organization, national in scope, which accepts such employees as members shall fulfill requirements of union membership.” Representative Harris, who served as spokesman for the House Committee, explained the history of the Senate amendment and stated that it “leaves to the individual employee in the operating service the choice of operating union to which he will belong, and this specifically resolves any doubt concerning a possible requirement of dual membership.” 96 Cong.Rec. 17059 (1951). And Congressman O’Hara endorsed the statement of the Brotherhood of Locomotive Engineeers that the amendment would mean that an Engineer would never have to join the Engineer’s Union. 96 Cong.Rec. 17052 (1951).
Neverthless appellants argue that the Supreme Court has limited the application of the proviso to situations where both unions are bargaining agents for crafts or classes of employees on the same railroad. We do not consider the language in Pennsylvania R. R. Co. v. Rychlik, 352 U.S. 480, 77 S.Ct. 421, 1 L.Ed.2d 480 (1957) which appellant relies upon to be dispositive. The Court held that “Section 2, Eleventh (c) allows alternative union membership only in those unions which have already qualified under Section 3, First of the Act, as electors of the union representatives on the National Railroad Adjustment Board, and not membership in any union which happens to be, as a matter of fact, national in scope and organized in accordance with the Railway Labor Act.” 352 U.S. at 485, 77 S.Ct. at 424. The issue of the scope of Eleventh (c) as applied to unions qualified under Section 3, First, of the Act was not before the Court. It only decided that membership in a union which was not so qualified did not satisfy the union shop provisions of the Act.
However, appellant points to other language at page 489, at page 426 of 77 S.Ct. of the opinion:
“[T]he sole aim of the provision was to protect employees from the requirement of dual unionism in an industry with high job mobility, and thus to confer on qualified craft unions the right to assure members employment security, even if a member should be working temporarily in a craft for which another union is the bargaining representative,”
and to a statement at pages 492 and 493 at page 427 and 428 of 77 S.Ct. that,
“The only purpose of Section 2, Eleventh (c) was a very narrow one: to prevent compulsory dual unionism when an employee temporarily changes crafts. The aim of the Section, which was drafted by the established unions themselves, quite evidently was not to benefit rising new unions by permitting them to recruit members among employees who are represented by another labor organization. Nor was it intended to provide employees with a general right to join unions other than the designated bargaining representative of their craft, except to meet the narrow problem of intercraft mobility.”
While the Court described the section as having only one purpose, prevention of compulsory dual unionism and provision for intercraft mobility, there are two aspects to the operation of the proviso reflecting the two situations in which intercraft mobility might lead to the dual unionism problem.
First, when an employee changes crafts his new craft may be represented by a different union. Under the statute the employee clearly does not have to change unions. The second situation in which the problem arises, which was not discussed in Rychlik, is when so many employees change crafts without changing unions that the bargaining agent for the craft no longer has majority membership in the craft. For example, when there are many layoffs so many engineers may be performing firemen’s jobs that there are more engineers than firemen in firemen's positions. The result might be that the Brotherhood of Locomotive Engineers will get the contracts for both firemen and engineers and the Brotherhood of Locomotive Firemen and Enginemen will no longer have a contract with the railroad. In this situation the firemen may still want to be members of the Locomotive Firemen’s Brotherhood which is their traditional craft union. The second aspect of the operation of Eleventh (c) is to permit these firemen, now a minority, to satisfy the union shop requirement by membership in their craft union, even though it is no longer their bargaining agent.
The annual reports of the National Mediation Board to Congress from 1934 to 1950 show that during this period there were 544 instances on 64 different railroads in which, through demotions or promotions due to changed employment conditions or through union recruiting, a minority union in a craft achieved a majority and as a result took over the contract traditionally held by another union. It was with this history in mind that the operating unions drafted the amendment to the bill which became § 2, Eleventh (c). Obviously the amendment which the unions drafted was intended to make it clear that an employee would be able to satisfy union shop requirements by retaining membership in an operating union whether or not it was the collective bargaining agent for the craft or class in which he was working and whether or not it was the bargaining agent for any craft or class.
In any event, the Supreme Court noted in its opinion in the Rychlik case, that in deciding the case it did not reach the questions which had been decided by this Court. 352 U.S. at 485, 77 S.Ct. 421. Our opinion, remanding to the district court for a finding on whether the union which Rychlik joined was “national in scope” within the meaning of the Act, was predicated upon holding that membership in any such union would satisfy the requirement of § 152, Eleventh (c). 229 F.2d 171, 174 (2d Cir. 1956). We see no reason to hold otherwise. No argument has been advanced which compels overruling of our decision in Rychlik, as limited by the Supreme Court’s holding to unions qualified under Section 3, First of the Act.
We are not persuaded by the contrary holding of the Third Circuit in Rohrer v. Conemaugh & Black Lick Railroad Company, 359 F.2d 127 (1966), which the Seventh Circuit also has declined to follow, Birkholz v. Dirks, 391 F.2d 289 (7th Cir., Feb. 12, 1968).
Further, the Supreme Court’s decision in Felter v. Southern Pacific Co., 359 U.S. 326, 79 S.Ct. 847, 3 L.Ed.2d 854 (1959) implies that an employee can satisfy the union shop requirement by membership in any of the recognized railroad unions for the First Division, since the Court assumed that Felter had validly changed his union membership although it was clear that he left the union which was his collective bargaining agent and it was not clear that his new union represented any of the railroad’s employees.
It is true, as appellant contends, that as in the National Labor Relations Act, the purpose of the union shop is to prevent employees from being “free riders.” See International Association of Machinists v. Street, 367 U.S. 740, 760-764, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1951). But we cannot say that the scheme adopted by Congress, which permits membership in any of the unions which jointly share the duty of administering the machinery of the National Railway Labor Act, is inconsistent with that purpose. It is quite conceivable that Congress intended to implement its scheme through a system of reciprocal gains and losses among the various operating unions. While the Brotherhood of Railroad Trainmen does not collect dues from some of the employees of the Erie Lackawanna whom it represents, concededly it collects dues from employees of other railroads who are represented by other operating unions. See 367 U.S. at 764 n. 15, 81 S.Ct. 1784.
We are unable to find any justification for appellant’s contention that it is entitled to a strict union shop despite the language of the Act because it is the sole collective bargaining agent for all employees on the railroad.
Appellant’s cause of action for libel, pleaded in its answer as a counterclaim, was dismissed below because it “could become an issue only if the contract complained of were held to be valid as a matter of law.” We disagree. The alleged libels described the union shop agreement as a “Slave Labor Agreement” and described membership in appellant as “Dictatorship with no voice in the affairs of their Union.” No matter what the status of the union shop agreement, reference to a competing union as a “dictatorship” could constitute a libel. However, this cause of action does not arise out of the same transaction or occurrence as appellees’ claim. As a permissible counterclaim it must be supported by independent jurisdictional grounds. 6 Moore, Federal Practice par. 13.19 [1]. See Lesnik v. Public Industrials Corporation, 144 F.2d 968, 975-976 (2d Cir. 1944). We find appellant’s counterclaim lacking in this respect and affirm its dismissal for lack of jurisdiction over the subject matter.
The judgment is affirmed.
. Section 2
“Eleventh. Notwithstanding any other provisions of this Act, or of any other statute of law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this Act and a labor organization or labor organization duly designated and authorized to represent employees in accordance with the requirements of this act shall be permitted—
“(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is the later, all employees shall become members of the labor organization representing their craft or class; * * *
“(c) The requirement of membership in a labor organization in an agreement made pursuant to sub-paragraph (a) of this paragraph shall be satisfied, as to both a present or future employee in engine, train, yard or liostling service, that is, an employee engaged in any of the services or capacities covered in the First Division of Subsection (h) of Section 153 of this chapter, defining the jurisdictional scope of the First Division of the National Railroad Adjustment Board, if said employee shall hold or acquire membership in any one of the labor organizations, national in scope, organized in accordance with this chapter, and admitting to membership employees of a craft or class in any of said services; * * * Provided, however, That as to an employee in any of said services on a particular carrier at the effective date of any such agreement on a carrier, who is not a member of any one of the labor organizations, national in scope, organized in accordance with this chapter and admitting to membership employees of a craft or class in any of said services, such employee, as a condition of continuing his employment, may be required to become a member of the organization representing the craft in which he is employed on the effective date of the first agreement applicable to him: Provided, further, That nothing herein or in any such agreement or agreements shall prevent an employee from changing membership from one organization to another organization admitting to membership employees of a craft or class in any of said services.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_state | 11 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Alex BUCHANAN, Appellant, v. Olin G. BLACKWELL, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
No. 23927.
United States Court of Appeals Fifth Circuit.
Feb. 15, 1967.
Alex Buchanan, pro se.
Thomas K. McWhorter, Asst. U. S. Atty., Charles L. Goodson, U. S. Atty., Robert L. Smith, Asst. U. S. Atty., for appellee.
Before TUTTLE, Chief Judge, and BELL and GOLDBERG, Circuit Judges.
TUTTLE, Chief Judge:
Appellant was convicted and sentenced on May 15, 1958, by the United States District Court for the Western District of North Carolina to serve a total of five years imprisonment for breaking and entering a Post Office in violation of 18 U.S.C.A. § 2115. After serving his five year sentence less good time credits, he was released from federal prison, pursuant to 18 U.S.C.A. § 4163, on September 25, 1961.
Some ten months later, on July 29, 1962, appellant was arrested and charged with a state criminal offense in Tennessee. When he reported to his federal parole officer on October 1, 1962, he was shown a warrant, issued by the United States Board of Parole, charging him with violating the conditions of his release on the federal sentence of May 15, 1958. On October 29, 1962, he was tried and convicted on the state charge, and sentenced to five years imprisonment in the Tennessee State Penitentiary. Upon his release from state prison on December 29, 1965, he was returned to federal custody under the warrant issued by the United States Board of Parole in 1962, and incarcerated in the United States Penitentiary at Atlanta, Georgia, to complete service of his 1958 federal .sentence.
On June 14, 1966, appellant petitioned the United States District Court for the Northern District of Georgia for a writ of habeas corpus, asserting vigorously (albeit mistakenly) that under the rule of Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965), the Parole Board lost its power over him by failing to execute its warrant before November 15, 1962 — the date upon which the terminal 180 day period of his full five year sentence of May 15, 1958, would have begun. In a memorandum opinion, the District Court denied appellant’s petition, but granted his motion for leave to appeal in forma pauperis. The case is submitted on the record and the briefs of both parties, without oral argument.
At the outset, we point out that the authority of the Board of Parole to issue the warrant here involved is clear. At the time of his release from federal, prison on September 25, 1961, appellant had completed service of his original five year federal sentence less good time credits, and was thus a mandatory release under 18 U.S.C.A. § 4163. As such, he was subject to the provisions of 18 U.S.C.A. § 4164, which states:
“A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” (Emphasis added.)
Appellant’s “maximum term less one hundred and eighty days” under the five year sentence of May 15, 1958, did not expire until November 15, 1962. Consequently, appellant occupied the status of a parolee when the Parole Board, prior to October 1, 1962, exercised the authority granted to it by 18 U.S.C.A. § 4205, which provides:
“A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced.” (Emphasis supplied.)
The illegality, then, in appellant’s present detention, if any there be, must arise from the fact that execution of the Parole Board’s warrant was delayed until after the time when its power to treat with him as a parolee normally would have expired (that time being maximum sentence less one hundred and eighty days — November 15, 1962, in this case). The contention that such a delay vitiates the Parole Board’s authority to require service of the unexpired term of a sentence was recently answered by this Court in Smith v. Blackwell, 367 F.2d 539 (5 Cir. 1966) :
“Appellant in his petition fails to distinguish between the terms ‘issuance’ of a warrant and ‘service’ (or ‘execution’) of a warrant. He contends that 18 U.S.C. § 4205 requires that a parole violator warrant be issued and served within the maximum term for which the violator was sentenced. That statute, however, applies only to the issuance of a warrant * * * The statute does not purport to place a limitation on the period in which a warrant may be served (or executed), and the law is well settled that a warrant issued within the maximum term of the original sentence may be served after the parole violator has served a second sentence imposed while he was on parole * * * This is so even though the warrant is not served until after the expiration of the maximum term in which it could be issued * * Moreover, by violating his parole, a prisoner is viewed as no longer being in actual or constructive custody under his first sentence and cannot successfully argue that service under the second sentence should be credited to the first or run concurrently with it. * * * Finally, by violating parole, a prisoner forfeits all credit for good conduct time accumulated prior to release and all credit for time on parole, and must serve the full unexpired term of the original sentence. 18 U.S.C. § 4205 * *
The only material difference between the facts in Smith v. Blackwell and those presented here is that Smith was a parolee, while appellant was a mandatory releasee, by virtue of 18 U.S.C.A. § 4164. But that distinction is of no avail to appellant here, for the Board’s warrant for his retaking concededly was issued prior to October 1, 1962- — well in advance of the beginning of the terminal one hundred and eighty day period of his original five year sentence on November 15, 1962. Since the warrant was issued at a time when appellant was by statute "deemed as if released on parole” (18 U.S.C.A. § 4164), the reasoning employed in Smith v. Blackwell is fully applicable to the case at bar. Accordingly, the judgment of the district court was correct, and is
Affirmed.
. Appellant’s reliance upon Birch v. Anderson is misplaced. That case holds only that the Board of Parole has no authority to issue a warrant for a mandatory release during the terminal one hundred eighty days of his sentence, for the obvious reason that a mandatory release is no longer “deemed as if released on parole” (18 TJ.S.O.A. § 4164) onee that terminal period begins, and thus is not thereafter subject to Board supervision. As will be seen, that holding offers no support for appellant’s claim.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_geniss | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Oren HOLSEY, Defendant-Appellant.
No. 245-70.
United States Court of Appeals, Tenth Circuit.
Dec. 21, 1970.
Russell Cranmer, Wichita, Kan. (Michaud & Cranmer, Wichita, Kan., on the brief), for defendant-appellant.
John J. Immel, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.
Before PHILLIPS, BREITENSTEIN and HILL, Circuit Judges.
ORIE L. PHILLIPS, Circuit Judge.
Holsey was charged by indictment with bank robbery and in the commission thereof with putting the life of Fred L. McMillen in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. § 2113(a), (d).
He was convicted, sentenced, and appealed. This court reversed, on the ground that evidence was seized by an unlawful search and was improperly admitted. See United States v. Holsey, 10 Cir., 414 F.2d 458.
He was again tried, convicted, and sentenced, and has appealed.
About noon on July 5, 1967, a man entered the National Bank of Wichita, in Wichita, Kansas. He approached Frederick McMillen, a teller of the bank, pointed a pistol at him, handed him a brown paper bag, and said, “Fill this up. I mean business. Don’t press any buttons.” McMillen reached in his cashier’s box, took money therefrom, and put it in the bag. Another teller, L. B. Warren, started to walk toward McMillen’s window, and the robber said, “Don’t move. Stay exactly where you are at.” After receiving the money, the robber fled from the bank. Another teller, Donna Drouhard, from about six feet from McMillen’s window, observed the robbery while it was in progress.
At a lineup held November 9, 1967, in the County Jail of Sedgwick County, Kansas, McMillen, Warren and Drou-hard identified Holsey as the man who committed the robbery. Holsey contends that the officers conducting the lineup compelled Holsey to be a witness against himself.
The natural color of Holsey’s hair was dark. Before his arrest, he had dyed his hair a light color, and it was a light col- or when the lineup was held. The jailer selected from available persons five who best resembled Holsey, except that their hair was dark. The bank tellers had theretofore given a description of the robber and stated that his hair was dark.
Prior to the holding of the lineup, Agents of the F.B.I. attempted to persuade Holsey to restore the dark color of his hair. Holsey refused. F.B.I. Agent Richard Eckberg supplied Holsey with a dark wig before the lineup was held, but Holsey refused to wear it. As a result, he was the only person in the lineup with light hair. Holsey also refused to put on articles of clothing furnished to him and the other five persons in the lineup. Holsey threw the clothing on the floor. The other five persons put it on. The officers asked the persons who were to appear in the lineup to wear dark glasses. All of them did so, except Holsey. He refused.
Two attorneys representing Holsey were present at the lineup.
The officers did everything possible to make the lineup fair. If Holsey suffered any disadvantage, it was because of what he, himself, did or refused to do. He apparently thought that perhaps the light color of his hair would be to his advantage. All he was compelled to do was to exhibit his person for observation in the lineup.
The following facts are pertinent, because of Holsey’s claim that the testimony of witnesses introduced at the trial was discovered from information that was obtained by the Agents of the F.B.I. by the unlawful search and seizure, and was therefore tainted by such unlawful search and was improperly admitted.
On November 1, 1967, Holsey was arrested, and a search made of his rented house and his automobile. Those were the searches held illegal by this court on the former appeal.
On October 23, 1967, Paul Farmer, an employee of the Sheriff’s office of Sedg-wick County, Kansas, gave Eckberg information that he had obtained, indicating that Holsey was involved in the bank robbery. Farmer also told Eckberg that Holsey was driving a 1961 Thunderbird automobile, bearing Tennessee license number Jl-3297, and that he believed it was a hardtop.
After receiving such information, Eckberg, on October 25, 1967, requested the F.B.I. in Nashville, Tennessee, to check such license number in the official records and determine in whose name the automobile, for which license number Jl-3297 was issued, was registered.
On October 31, 1967, the Nashville F. B.I. conducted such investigation and learned that a 1961 Ford Thunderbird automobile bearing Vehicle Identification Number IY71Z162734 was registered in the name of Jack D. Weber, 1044 South Sedgwick, Wichita, Kansas, Tennessee license number Jl-3297. Also, on October 31, 1967, the Nashville F.B.I. cheeked with the Title Section of the Motor Vehicle Division, Nashville, Tennessee, and learned that on August 16, 1967, a Ford Thunderbird two door hardtop, VIN IY71Z162734, was titled under Tennessee title number 12268693, and the records listed the owner as Jack D. Weber, 1044 South Sedgwick, Wichita, Kansas, and stated the vehicle was purchased by Weber on July 14, 1967, from “Doc” Jenkins Motors, 410 La-Fayette Street, Nashville, Tennessee, for $823. Such information led the F.B.I. to conduct a further investigation in the Nashville area. The information regarding the purchase of the Thunderbird from “Doc” Jenkins Motors led to the discovery by the F.B.I. of all the witnesses from Tennessee who testified at the second trial and what their testimony would be.
Walter W. Dunkling, an Agent of the F.B.I., stationed at Nashville, interviewed “Doc” Jenkins a few days after November 22, 1967. As a result of his interview with Jenkins, Dunkling located and interviewed Edward Collins and A. J. Tomlinson. Tomlinson told Dunkling he met a man by the name of Jack Weber at the Hermitage Hotel in Nashville, Tennessee. Dunkling then interviewed Edward F. Hocker, a clerk of such hotel, and learned that Weber made several local telphone calls from the hotel. Dunk-ling then learned that one of such local calls was made to the residence of Rudy Ruark. He then proceeded to interview Ruark and also several other persons to whom local calls were made, but who did not testify as witnesses at the second trial.
A document was found in the search of Holsey’s house on November 1, 1967, which evidenced the purchase of the Thunderbird from “Doe” Jenkins Motors by a person using the name Jack Weber and payment therefor by Weber of $823.85, but an F.B.I. Agent at Nashville, on October 31, 1967, had learned of the purchase of the Thunderbird from “Doc” Jenkins Motors on July 14, 1967, by a man giving his name as Weber, and the payment therefor of $823.
On October 28, 1967, Jerry Dietz, a highway patrolman, stopped Holsey (then using the name Jack Weber) and gave him a ticket for speeding and failure to register his vehicle in Kansas. Dietz testified at the trial and identified Holsey as the man he stopped on October 28, 1967. On October 31, 1967, Dietz heard a broadcast of a dispatch from the Highway Patrol dispatcher at Salina, Kansas, giving the name of the driver of an automobile as Lloyd O. Hol-sey, a description of the vehicle, and the license plate number. Dietz recognized it as a vehicle he had stopped on October 28, 1967, and he notified the dispatcher that he thought he should notify the F. B.I. Such notification to the Wichita F.B.I. led to Holsey’s arrest on November 1, 1967.
The document and other material found in the search of Holsey’s house gave the F.B.I. no new information. They already knew from the investigation of October 31, 1967, that a person using the name of Jack Weber had purchased the Thunderbird and they had information on October 31, 1967, that Hol-sey and Weber were the same person. They also knew prior to October 31, 1967, that Holsey was driving a Thunderbird which answered the description of the one registered by Weber in Tennessee and had the same license plate.
Jenkins testified at the second trial and identified Holsey as the person who had purchased the Thunderbird from him under the name of Weber.
Tomlinson testified at the second trial that he was a cab driver in Nashville in 1967; that he met a person known as Jack Weber, who said he was from Wichita, Kansas; that he transported such person in his cab several times. He identified Holsey as the man he knew as Jack Weber. He further testified that he drove such person to “Doc” Jenkins Motors, where such person purchased a 1961 Thunderbird; that there was a leak in the power steering of the Thunderbird, which had to be repaired, and that he drove such person back to the Hermitage Hotel.
Ruark testified at the second trial that he advertised a 1965 sports model Chevrolet for sale; that a person giving his name as Jack Weber answered the advertisement by telephone; that he arranged to meet such person at the Hermitage Hotel, and that the person stated he would be standing in front of- the Hermitage Hotel; that he went to the hotel and picked up a person, who introduced himself as Jack Weber, and that they failed to make a deal. Ruark pointed Holsey out in the courtroom as the person who had introduced himself to him as Jack Weber.
I. Did the conducting of the lineup compel Holsey to be a witness against himself?
In United States v. Wade, 388 U.S. 218, at 222, 87 S.Ct. 1926, at 1930, 18 L.Ed.2d 1149, the court said:
“We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. * * *”
The court cited with approval a statement to the same effect in Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 54 L.Ed. 1021.
While prior to the trial Holsey was compelled to exhibit his person for observation in the lineup, he was in no way compelled to give any “evidence having testimonial significance.” He was compelled to exhibit his “physical characteristics,” but he was not compelled “to disclose any knowledge he might have.” If Holsey suffered any disadvantage in the lineup, it was due entirely to his actions and inactions. The jailer and the F.B.I. endeavored to make the lineup fair and impartial and free from any prejudice to Holsey, who refused to cooperate to that end.
On the first appeal, the court reviewed what occurred at the lineup and identification and concluded that the requirements laid down in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, were met, and that there was no violation of Holsey’s constitutional privilege against self-incrimination. We reaffirm that holding.
II. Was evidence introduced at the trial tainted by the unlawful search?
With respect to the contention that testimony was discovered and introduced at the trial by the use of information obtained by the F.B.I. Agents through the unlawful search, the record speaks for itself and refutes the claim.
The information, which led to the discovery of the witnesses from Nashville, Tennessee, who testified at the second trial and the pertinent facts that they knew and to which they would testify, was known to the F.B.I. Agents on or prior to October 31, 1967, and before the search was made. Hence, they were within the exception to the exclusionary prohibition laid down in Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441, and recognized in the following language in the opinion, which it quoted with approval from Sil-verthorne Lumber Co. v. United States, 251 U.S. 385, at 392, 40 S.Ct. 182, at 183, 64 L.Ed. 319, as follows:
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”
Here, such knowledge obtained by the search gave the F.B.I. Agents no information they did not have before, and in nowise tainted the evidence received at the second trial.
Accordingly, the judgment is affirmed.
. Before the trial, Holsey had let his hair resume its natural dark color.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_genresp2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Herbert M. C. “Tommy” WALKER, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent.
No. 33, Docket 24538.
United States Court of Appeals Second Circuit.
Argued Jan. 8, 1958.
Decided Jan. 31, 1958.
Lord, Day & Lord, New York City (Woodson D. Scott, New York City, of counsel), for petitioner.
Victor R. Hansen, Asst. Atty. Gen.; Daniel M. Friedman, Atty., Dept, of Justice, Franklin M. Stone, Gen. Counsel, Civil Aeronautics Board, John H. Wanner, Associate Gen. Counsel, Robert L. Park, Asst. Gen. Counsel, O. D. Ozment, Asst. Gen. Counsel, Litigation and Research, Gerald F. Krassa, Atty., Civil Aeronautics Board, Washington, D. C., for respondent.
Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.
Herbert M. C. “Tommy” Walker, a licensed pilot, petitions to set aside an order of the Civil Aeronautics Board revoking his airman’s certificate and directing that he should not be issued another certificate for a period of six months. On December 7, 1955 the Board suspended petitioner’s license for reasons which are not presently relevant, the suspension to commence December 17 and to continue in effect for a period of ten days thereafter if the certificate were surrendered on or before December 17. If the certificate were not so surrendered the license remained suspended until such time as the certificate was surrendered and for ten days thereafter. Walker surrendered his certificate on March 14, 1956. Petitioner admits that during the three month period between the effective date of the suspension and the surrender of the license certificate he flew aircraft on several different occasions. He alleges, however, that beginning December 17 and for ten days thereafter, though retaining possession of his certificate, he voluntarily grounded himself in order to avoid the consequences of ignoring the suspension order. The Board does not appear to have disbelieved this allegation, but it is entitled to little weight in view of a letter sent by petitioner on February 22, 1956 to the Board’s Chief Examiner in which petitioner stated that he, “with all due respect to the Board, cannot acknowledge the suspension imposed and feels constrained, in the best interests of justice, to continue the rights and privileges of his pilot license.”
In any event, on April 18, 1956, the Administrator commenced the present proceeding by filing a complaint with the Board setting forth the violations of the suspension order of December 7, 1955. A hearing was held before a Board examiner who ordered revocation of petitioner’s certificate. A motion for rehearing before the examiner was denied, and an appeal was then taken to the Board, which, after reviewing the record, denied oral argument as requested by petitioner, and affirmed the examiner’s order and his denial of the rehearing petition.
In seeking review by us of the Board’s order petitioner urges that under Section 9(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1008(b), the Board exceeded its power in revoking the license. This argument, however, ignores the fact that the opportunity to achieve compliance granted by § 9(b) is expressly made inapplicable to cases involving a willful violation of regulations. The Board found that petitioner, by flying between December 17 and March 14, deliberately chose to disregard the suspension order. This finding is amply supported by the record. Petitioner contends that the order of revocation should be set aside because its severity is disproportionate to the offense. There is no merit to this contention. The Board is vested with a wide range of discretion in the imposition of penalties, cf. Wilson v. Civil Aeronautics Board, 1957, 100 U.S.App.D.C. 325, 244 F.2d 773.
The petitioner also suggests that there were certain procedural irregularities in the administrative proceedings. Subsequent to the initial decision by the examiner, petitioner requested a rehearing because he allegedly was unaware that revocation rather than suspension of his license was under consideration and because he was not represented by counsel. However, the complaint which had been filed by the Administrator stated that either suspension or revocation of the license was sought; and the letter to Walker transmitting the complaint explicitly set forth that petitioner was entitled to representation by counsel. Petitioner also sought the rehearing in. order to enable him to withdraw his February 22 letter, and to permit him to introduce additional evidence of his experience and qualifications as a pilot and of his readiness to comply with all lawful orders and regulations. Assuming, arguendo, that these matters were relevant, there was no satisfactory explanation as to why they had not been offered at the initial hearing. We find no error in the denial of petitioner’s rehearing request, and the Board acted within proper discretionary limits in denying petitioner’s request for oral argument upon appeal from the examiner’s order. See Sisto v. Civil Aeronautics Board, 1949, 86 U.S.App.D.C. 31, 179 F.2d 47.
Petition dismissed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_respond1_3_2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Alberto MEJIA, Defendant-Appellant.
No. 87-4120.
United States Court of Appeals, Fifth Circuit.
April 25, 1988.
Rehearing and Rehearing En Banc Denied July 6, 1988.
Michael J. Osman, Miami, Fla., for defendant-appellant.
John A. Broadwell, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.
Before THORNBERRY, WILLIAMS and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Alberto Mejia appeals a judgment of conviction on a four-count indictment relating to the importation and distribution of a large quantity of cocaine. We affirm.
I.
The government’s indictment charged that Alberto Mejia, under the cover of a cattle export business, engaged with others in a criminal enterprise to import large amounts of cocaine into the United States. The government indicted and tried Mejia on counts of (1) conspiracy to import 1,197 pounds of cocaine from Panama, in violation of 21 U.S.C. §§ 952(a), 963; (2) aiding and abetting that importation, violating 21 U.S.C. § 952(a), 18 U.S.C. § 2; (3) conspiracy to distribute the cocaine, abridging 21 U.S.C. §§ 841(a)(1), 846; and (4) attempt to possess the cocaine with intent to distribute, contrary to 21 U.S.C. §§ 841(a)(1), 846. A jury found Mejia guilty on all four counts, and the trial judge sentenced him to an aggregate twenty-five year term of imprisonment followed by a mandatory three-year special parole term. Mejia appeals his conviction on two grounds. First, he charges that the evidence presented by the government was insufficient to support his conviction. Second, Mejia challenges the district court’s exclusion of testimony from his Miami attorney as hearsay. The facts will be discussed below in more detail when we consider each of appellant’s assignments of error.
II.
Mejia’s principal challenge on appeal is that the evidence is insufficient to convict him. He presents two distinct arguments. First, he contends that the standard of review for sufficiency of the evidence claims announced in United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983), may not be applied retroactively to an offense committed before the Bell decision. Second, Mejia argues that, under any standard, the government’s evidence of his guilt is insufficient to support his conviction.
A.
Mejia first addresses the proper standard we should use to assess his claim that the government presented insufficient evidence to support the jury’s conviction. He argues that the more recently announced, less stringent standard announced in Bell may not be applied retroactively to crimes committed before the date of the Bell decision. Bell requires us to view the evidence in the light most favorable to the verdict and affirm if the verdict is supported by substantial evidence. Mejia contends that his case must be reviewed according to a stricter, pre-Bell standard, which required reversal unless we determine that the trier of fact could reasonably have found that the evidence excluded every reasonable hypothesis except that of guilt. See, e.g., United States v. Squella-Avendano, 478 F.2d 433, 437 (5th Cir.1973); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).
Mejia bases this argument on the Constitution’s prohibition against application of ex post facto laws, U.S. Const, art. I, § 9, cl. 3. Mejia’s argument is meritless. The Supreme Court has made it clear that “no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offense or the ultimate acts necessary to establish guilt.’ ” Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987) (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)).
A change in the standard of review is properly characterized as procedural rather than substantive because it neither increases the punishment nor changes the elements of the offense or the facts that the government must prove at trial. See id. We have consistently applied Bell to criminal conduct that occurred before the Bell decision was announced. E.g., United States v. Vergara, 687 F.2d 57 (5th Cir.1982); United States v. Sudderth, 681 F.2d 990 (5th Cir.1982); United States v. Hartley, 678 F.2d 961 (5th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983).
B.
Having determined our standard of review, we now consider the substance of Mejia’s claim that the record evidence is insufficient to support his conviction. For this purpose we accept the evidence in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
The government sought to prove that Mejia participated in an elaborate scheme to fly large quantities of cocaine from Panama to New Iberia, Louisiana under the cover of a cattle exporting business. The initial steps to start the cattle exporting business from New Iberia, Louisiana airport were taken by John Reyes. Reyes asserted that he represented Panama Inex-port, a company interested in exporting Brahman cattle from Louisiana to Panama. He made preliminary arrangements with the New Iberia airport officials to export cattle.
In April of 1982, Reyes contacted Carlos Herrera, an employee of the Fair Air charter cargo airlines, for assistance in chartering an airplane for cattle shipments to Panama. Reyes explained that shipments would originate in New Iberia, Louisiana, because, Reyes contended, Louisiana cattle had a better reputation than Florida or Texas cattle. Reyes declined Herrera’s suggestion that the cattle could be transported much cheaper if they were trucked to Miami and flown to Panama from there. Reyes arranged for five back-to-back flights from New Iberia to Panama at $30,-000 per flight.
Reyes next contacted a cattle dealer, Gordon Guilliot, and preliminarily arranged for him to purchase cattle for Panama Inexport. Reyes informed Guilliot that a company representative, Alberto Mejia, would conduct all future business transactions for Inexport. Guilliot and Mejia eventually purchased cattle in Texas and Florida and trucked them to Louisiana for shipment to Panama. Guilliot testified that Mejia knew very little about buying cattle.
The first thirty-seven head of cattle were flown from New Iberia to Panama on May 6. The company’s Panamanian contact, Jorge Baena, told the flight crew that the Panamanian Customs officials refused the cattle because they were improperly vaccinated, and the cattle were flown back to New Iberia. The United States veterinarian who prepared the cattle for export testified that the cattle had been properly vaccinated and the Panamanians had no reason to refuse them. The government portrayed this trip as a dry run designed to test what control the conspirators would have over the cargo during off-loading in Panama.
A second shipment of fifty head of cattle was prepared for export on May 17. In addition to the cattle, the crew loaded forty fifty-pound sacks of feed, one bundle of plastic feed sacks, and two cardboard boxes containing stitching machines. Though Mejia argued that the plastic bags were required to protect the feed from moisture, the government presented evidence that this practice was unusual as well as unnecessary. The feed was stored in a dry facility before being loaded into the cargo area of the airplane, which was also completely dry. Mejia himself went to the feed store with Jaime Castillo, Mejia’s translator and business partner, to purchase these bags. It was the only time he accompanied Castillo on these errands. Mejia also personally saw that the feed bags and stitching machines were on the airplane; he helped move them to the front of the plane to balance the load before takeoff.
This shipment of cattle was successfully unloaded in Panama, but the feed bags were not. Baena explained to the flight engineer that the Panamanians had rejected the bags of feed because they were wet. When the plane returned from Panama on May 18, Mejia, Castillo, and others were waiting at the airport in New Iberia. Before the plane landed, Mejia told one of the workmen at the New Iberia livestock facility that he was going into town to pick up feed for the next load of cattle. Mejia never bought the feed, and though unin-dicted for some two years, was not seen again until shortly before his trial.
Customs agents arrived at the airport shortly after the plane landed. Their search of the airplane revealed 490 small packages of cocaine stuffed into the feed bags. Each feed bag was inside one of the plastic bags Mejia had purchased in Lafayette, and the top of each plastic bag was stitched closed. The 490 smaller packages of cocaine weighed 1,197 pounds; the cocaine was sixty to ninety-seven percent pure, with an estimated street value of $50,000,000.
When federal agents searched the residence in St. Martinville, Louisiana, that Mejia shared with Castillo, they found the house in disarray. Mejia’s clothes and other personal items had been left behind. In Castillo’s bedroom, the agents found several pages of hand written Spanish describing in great detail Panama Inexport’s mission in Louisiana. The government argues that this document, introduced as Government Exhibit No. 50, was a script for the Colombians to follow while they were in Louisiana — a means for the players to keep their cover stories straight. The document generally described the purpose of Panama Inexport and gave a detailed account of its personnel. For example, its second paragraph reads, “[Panama Inexport’s] general manager is Mr. John Reyes, about sixty-five years old, of medium height, always well dressed in a tie and jacket, very polite and well-mannered.” The document provided that Mejia “will be the direct representative of Panama Inexport, and in turn he will act as the inspector of the cattle to be received_ This way Mr. Mejia will always be together with Mr. Gordon Guillot [sic]. ...” The document directed Mejia to hire two cowboys from Panama to go with him to prepare the cattle.
People should get used to seeing the cowboys around the plane and the quarantine section, and if possible to cultivate the personnel working in quarantine. Mr. Mejia should take on the role of boss and coordinator and be above doing manual labor.... It is very important to ask Mr. Guillot [sic] for some decals and labels like the ones on his cars so that it will blend in with his. It is important that the cowboys always go in the truck and Mejia in the car.
The document further provided that the cowboys should ask Guilliot to take them into town to buy cowboy clothes and hats as soon as they arrived.
The latter part of the document, entitled “Secondary Line of Recovery,” outlined alternative escape plans. The document stated that Mejia was a sugar mill technician and had a plane nearby to enable him to obtain parts for a “very important repair.” The document further identified a “passive secondary” in the event of strange activity by Customs, such as more Customs officials than usual when the flight is about to arrive or the presence of dogs. In this event, the document advised “it is better to leave fast.” Finally the document listed an “alternate secondary,” which directed the conspirators to bribe the most suitable of the government personnel.
Mejia argues that the government presented no evidence of his knowledge of Exhibit No. 50. We conclude, however, that the jury could reasonably have concluded that Mejia’s behavior sufficiently conformed to that prescribed in Exhibit No. 50 that he was following the script and was a knowing participant in the conspiracy. Though Mejia’s behavior did not follow the script to the smallest detail, it did comport with the outline the document prescribed. For instance, Mejia played the role of the boss — he paid for everything the workers or the company needed, he stayed above manual labor, and he hired the cowboys. In addition, Mejia’s flight from the airport facility before the plane’s arrival conformed precisely to the document’s “passive secondary” plan of escape.
In addition to the inferences the jury was entitled to make from Government Exhibit No. 50, the jury was permitted to draw several other inferences from the evidence.
First, the nonsensical way Panama Inex-port chose to conduct its business, which seemed to guarantee financial disaster, supports the government’s argument that the company was a sham and existed for some purpose other than exporting cattle for profit. These abnormal, cost-enhancing business practices included trucking cattle from Texas and Florida to the remote New Iberia, Louisiana airport instead of flying the cattle directly from Houston and Miami to Panama. In addition, the company shipped the cattle very inefficiently. Though the aircraft’s cargo capacity was approximately 110 cattle, Panama Inexport sent only thirty-seven cows on the first trip and only fifty on the second. Considering the $30,000 cost of each flight, such inefficient use of the plane’s cargo capacity significantly increased the company’s cost basis in each animal.
Second, the fact that the New Iberia airport was chosen over Houston or Miami, against Panama Inexport’s economic interest, supports the government’s contention that the smugglers wished to conduct their business in an area where Customs inspectors would be less likely to inspect their cargo thoroughly. Third, Mejia’s involvement with the plastic bags is highly incriminating. The smugglers used these bags and stitching machines to enclose the re-sacked feed and help conceal the cocaine. Mejia bought these items himself and assisted in redistributing them on the plane. The clerk who sold Mejia the bags testified that, in his fifteen years of experience, this was the only time anyone had requested plastic protection for feed bags. He testified further that Mejia was his first and only customer to purchase a stitching machine. The jury was entitled to find that the only plausible reason Mejia had to purchase these materials and place them on the aircraft was to conceal the cocaine.
Fourth, Mejia followed other suspicious business practices on behalf of his company in regularly paying cash for large purchases. Although Mejia opened a checking account with a New Iberia bank, he paid $7,000 cash when he bought a used one-ton pick-up truck for the cowboys; he gave Gordon Guilliot $25,000 cash to buy cattle, and he paid cash for rental cars. The jury was entitled to infer that Mejia dealt in such large amounts of cash to avoid creating a paper trail of his activities and that a legitimate business would not have followed these practices.
Finally, the jury was entitled to consider as highly incriminating Mejia’s flight from the airport shortly before the Customs agents inspected the aircraft. This is particularly true in light of the evidence that he left his clothes and other personal belongings behind, relinquished plans to seek citizenship, abandoned the cattle export business, and left $13,904.70 in a checking account at the New Iberia National Bank. The physical items were later recovered by Mejia’s attorney; Mejia declined to re-enter the jurisdiction.
When all this evidence is considered together, it amply supports the verdict; the trial court did not err in entering judgment on it.
III.
Mejia also argues that the trial court improperly excluded testimony from his Florida counsel on grounds that it was hearsay. About two weeks after the cocaine was seized, Mejia asked attorney David O’Leary to help him retrieve the property he had left in Louisiana. At trial, Mejia sought to have O’Leary relate statements Mejia made to him in that meeting to rebut the government’s contention that his flight from Louisiana indicated a guilty conscience. Mejia argues that he was entitled to present evidence of an innocent state of mind as an exception to the hearsay rule under Federal Rule of Evidence 803(3). Whatever the merit of Mejia’s argument, his trial attorney failed to preserve this issue for appeal because he did not argue this hearsay exception to the trial court. “We have long held that, absent a showing of manifest injustice, a litigant may not raise a theory on appeal that was not presented to the district court.” United States v. Jackson, 700 F.2d 181, 190 (5th Cir.) (citations omitted) (defendant-appellant could not argue on appeal that testimony was not hearsay because it was not offered to prove the truth of the matter asserted when he did not argue this theory to the trial court), cert. denied, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132 (1983).
Even if the district court should have allowed O’Leary to relate Mejia’s statements to the jury, the failure to do so was at most harmless error because it was cumulative of O’Leary’s other testimony. The court allowed O’Leary to testify about what activities he undertook on Mejia’s behalf; the jury could infer that O’Leary took these steps at Mejia’s request. O’Leary further testified that Mejia was upset about the discovery of the cocaine. Mejia has failed to proffer what additional facts he intended to introduce through O’Leary’s testimony, so we are unable to evaluate Mejia’s requested relief on grounds that O’Leary’s testimony should have been admitted pursuant to Federal Rule of Evidence 803(3).
In the alternative, Mejia argues that the statement was not hearsay at all because it was not introduced to prove the truth of the matters asserted. This issue, too, defense counsel failed to raise to the trial court; it is therefore beyond our reach on appeal. See id. Accordingly, we find no error in the district court’s exclusion of this defense testimony.
IV.
Because the government presented sufficient evidence to the jury to support their guilty verdicts, and because the trial court committed no error in excluding hearsay defense testimony, the judgment of the trial court entered on the jury’s verdict is affirmed.
AFFIRMED.
. Mejia argued for the first time in his reply brief on appeal that Exhibit No. 50 should not have been admitted into evidence because it was hearsay. Because Mejia neither objected to this evidence at trial nor assigned its admission as error in his opening brief, we do not consider his argument. See Mississippi River Corp. v. Federal Trade Comm’n, 454 F.2d 1083 (8th Cir.1972); Finsky v. Union Carbide & Carbon Corp., 249 F.2d 449 (7th Cir.), cert. denied, 356 U.S. 957, 78 S.Ct. 993, 2 L.Ed.2d 1065 (1957).
. Federal Rule of Evidence 803 provides, in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. — A statement of the de-clarant’s then existing state of mind, emotion, sensation, or physical condition....
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_genstand | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
BEHLES v. COMMISSIONER OF INTERNAL REVENUE.
No. 5904.
Circuit Court of Appeals, Seventh Circuit.
Jan. 4, 1937.
Samuel J. Moran, of Chicago, 111., for petitioner.
Robert H. Jackson, Asst. Atty. Gen., and Sewall Key and Joseph M. Jones, Sp. Assts. to Atty. Gen., for respondent.
Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.
EVANS, Circuit Judge.
Petitioner complains of an affirmance of a determination of a 1926 deficiency income tax amounting to $21,228.12. The alleged deficiency arises out of one item— an alleged taxable gain realized by the taxpayer from the sale of stock in Shoup Company, which was acquired in January, 1913.
The facts are: Petitioner entered Shoup Company’s employ in January, 1913. Simultaneously therewith, he entered into a contract v?hich provided for his acquisition of 25 shares of Shoup stock for $21.-550, to be paid for solely but of dividends. The stock was completely paid for in that manner on January 12, 1914. The contract provided that if petitioner should at any time cease said employ, Shoup Company or Shoup would have a sixty day option to purchase the stock at its then book value. Petitioner sold the stock in 1926 for $100,-000 cash and 2,500 shares of Wrigley Company stock (valued at $133,750) or for a total of $233,750. This sale was apparently completed with Shoup’s approval. The Commissioner deducted from this sum $21,-550, which was the amount of dividends applied on the purchase price of the stock, and upon the difference, to-wit, $212,250, computed the taxable gain.
For respondent it is urged that $21,550 should be taken as the 1913 value of the stock, for determining gain, inasmuch as "that was the amount actually paid. As its sales price was contracted for within six weeks of March 1, 1913, it would ordinarily be a fair indication of the fair market value of the stock on March 1, 1913.
The Shoup Company was a prosperous company with factories in' Brooklyn, New York, Toronto, and Chicago. Mr. Shoup was the only person financially interested in the company besides petitioner. It was because of Shoup’s desire to have a capable experienced man in charge of the Chicago end of the business while he was supervising the other factories that petitioner was taken into the business and sold a part of the stock. Doubtless, the desire to keep petitioner actively engaged and financially interested in the company, accounts for the provision respecting payment of purchase price of stock out of dividends and the right of Shoup to repurchase stock at book value in case petitioner withdrew. Petitioner studied the company’s books at the time he purchased the stock and concluded the proffered stock had a value of about $200,000. He accepted the proposition submitted to him and did so without “dickering” over the price. Petitioner’s salary averaged $5,000 per year with a bonus of $1,500.
There is only one question — an issue of fact — for our determination. What was the value of the Shoup stock interest on March 1, 1913, which petitioner acquired in January, 1913? Perhaps it might be better to state the question thus: Is there evidence to support the finding that the fair market value of this stock interest in March, 1913, was $21,550?
Although the final payments were made subsequent to March 1, 1913, we are satisfied that petitioner’s interest in the stock was acquired in January, 1913, and its value as of March 1, 1913, must be ascertained in order to determine petitioner’s gains on the sale of the stock for $233,-750. Section 204 (b) Revenue Act of 1926 (44 Stat. 14).
It is, we think, fair to say that the Government concedes the stock was worth more than $21,550 on March 1, 1913. It is argued however, and the Board so found, that the interest which petitioner then acquired therein was limited to that amount because he could not pay for the stock excepting out of dividends and he could not sell the stock excepting as he first offered it to Shoup for its then book value and because that was the sum which he paid for it.
We are convinced that the Board improperly limited its value to its sale price to petitioner. A reduced price for this stock was part of the compensation which Shoup gave petitioner in order to get him into his organization. Shoup might have given petitioner a higher salary. He might have given him a bonus. He chose to sell petitioner stock at a price below its fair value and at the same time sought to insure petitioner’s continued participation in the enterprise by making it impossible for him to pay for the stock except out of dividends and also make sale of the stock unlikely because he attached a condition that sale should be to Shoup and at its then book value in case petitioner ceased to be employed by Shoup. This reduced price was a consideration which petitioner received before March 1, 1913. It did not evidence a lessened value of the stock. It was the consideration for petitioner’s entering into the Shoup enterprise and employment.
The true value of petitioner’s stock interest in the Shoup Company, as of March 1, 1913, must be accepted in computing the gain rather than the price paid therefor after deducting the value of Shoup’s contract of employment. The evidence shows this value was far in excess of $21,550.
Doubtless it was less than the fair market value of the stock without restrictions against sale, etc., although we perceive no impairment of value due to the fact that payments were to be made out of dividends only. In fa'ct this might make the stock interest more valuable. As to the resale provision, we think, it clearly lessened the value of this stock. In its most unfavorable aspect, however, no great handicap resulted from the enforced and continued ownership of stock in a company which was paying and continued to pay dividends at the” rate of from twenty-five to 'two hundred per cent, per annum and whose surplus increased from $56,000 in 1912 to $680,000 in 1925 and during which period the capital stock increased from $10,000 to $400,000. We cannot believe that compulsory retention of such stock reduced its value from $200,000 to $21,-550. We are unable to find any support for a valuation on March 1, 1913, of $21,550.
In this case the price paid for the stock did not evidence value. It was the balance due after deducting the value of petitioner’s employment contract. Yet the Board accepted it as conclusive on the question of value. Surely book value must give way when it appears that earnings per year nearly equal the book value of the stock.
The order of the Board of Tax Appeals is reversed with directions to deter-’ mine value and make findings in harmony with the views here expressed.
“Tlie undersigned A. D. Shoup has on the date hereof sold to the undersigned Nicholas G. Behles, the attached certificate for twenty-five (25) shares of the capital stock of A. D. Shoup Co., at an agreed price of Twenty-one thousand five hundred fifty Dollars, and it is agreed between the parties as follows:
“The above consideration for the purchase of said shares of stock shall be wholly paid to the said A. D. Shoup from dividends earned on said shares of stock and declared by the Board of Directors of A. D. Shoup Go., and said Nicholas G. Behles assumes no other responsibility or obligation as to the payment of said purchase price than that the dividends declared by the Board of Directors and paid on said shares of stock will be paid to the said A. D. Shoup until the full purchase price has been paid, and for the purpose of enabling said A. D. Shoup to receive such dividends, the said Nicholas G. Behles hereby assigns and transfers to the said A. D. Shoup all dividends that may be declared by A. D. Shoup Co. on the attached stock until the said consideration has been fully paid to said A. D. Shoup, and hereby appoints the said A. D. Shoup, his executors, administrators and assigns, as his attorney in fact, to receive and receipt for all such dividends until said consideration has been fully paid.
“It is further agreed by the said Nicholas G. Behles that if at any time he shall' cease to be employed by the said A. D. Shoup Go., the said A. D. Shoup or the said A. D. Shoup Co. shall have the option within sixty days from the date such employment ceases, no matter from what cause, to purchase said shares of stock at its then book value, deducting from such purchase price any sum that may be due on the purchase money, said A. D. Shoup on his part agreeing, subject to the foregoing, that when said stock has been fully paid for by dividends, he will deliver the same to the said Nicholas G. Behles.
“Dated this 15th day of January, A. D. 1913.
“[Signed] Alonzo D. Shoup [Seal]
“[Signed] Nicholas G. Behles [Seal]
“Received Payment in full Jan. 12th, 1914.
“[Signed] A. D. Shoup.”
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genapel1 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
K. H. BUTLER & CO., Inc., v. A CERTAIN FUND OF MONEY, etc.
(Court of Appeals of District of Columbia.
Submitted October 13, 1925.
Decided November 2, 1925.)
No. 4231.
War 12 — Repayment of loan between corporations having inierioekisig directorates held not to raise presumption of fraud; money for repayment being raised personally by sole stockholder of borrowing corporation.
Where corporation A, owned by three German nationals, made substantial loan to corporation B, owned and controlled by A’s secretary, who, on Alien Property Custodian’s seizure of assets of corporation A, and demand for payment of loan, as security delivered stock of corporation B to Alien Property Custodian, who placed the same directors in charge of both corporations, and such secretary thereafter individually borrowed money to repay loan made to corporation B, and obtained return of stock of corporation B. held, on reorganization of corporation B, money paid corporation A could not be recovered in suit by corporation B against Alien Properly Custodian, under Trading with the Enemy Act, § 9 (Oomp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%e), on . theory that there had been in fact no loan, but only a wrongful withdrawal of corporate assets of corporation B, and that, in view of the interlocking directorates, the repayment raised a presumption of fraud; there being no evidence to support such an inference.
Appeal from the Supremo Court of the District of Columbia.
Suit by K. H. Butler & Co., Inc., against a certain fund of money, Thomas W. Miller, as Alien Property Custodian, and Frank White, as Treasurer of the United States. From a decree overruling exceptions to the report of the special master, confirming the report and dismissing the bill, plaintiff appeals.
Affirmed.
A. K. Nippert, of Cincinnati, Ohio, and William Sabine, of Washington, D. C., for appellant.
D. H. Stanley and Peyton Gordon, both of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB and VAN OESDEL, Associate Justices.
ROBB, Associate Justice.
Appeal from a decree in the Supreme Court of the District of Columbia overruling appellant’s exceptions to the report of a special master, confirming that report, .and dismissing the bill which had been filed under the provisions of section 9 of the Trading with the Enemy Act (40 Stat. 419 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115^20]).
The case involves transactions between two New York corporations, appellant K. II. Butler & Co., Inc. (hereinafter referred to as the Butler Company), and the Felix Schoeller Paper Company, Inc. (referred to as the Paper Company); the assets of the latter company having been seized by the Alien Projicrty Custodian. The Paper Company was incorporated on April 15, 1915. Ferdinand Selvurmann was elected president and treasurer and Hermann Lange secretary. At the outbreak of the World War and subsequently its entire capital stock was owned by three German nationals residing in Germany.
Prior to the incorporation of the Butler Company on August 10, 1916, the business taken over by that company was owned and conducted by Lange. It was alleged in the bill, the evidence showed, and the special master found that Lange was the sole equitable owner of the entire capital stock of the Butler Company, and its active and sole head. On or about October 5, 1916, an agreement was entered into between these two corporations, whereby the Paper Company was to loan money to the Butler Company to an extent warranted by the business of: the latter and within the means of the former. Between October 6, 1916, and September 7, 1917, loans were made under this agreement to the amount of $107,504.55. Subsequently the Alien Property Custodian seized the stock of the Paper Company and caused new directors to be elected. These directors, finding evidence of the indebtedness of the Butler Company, entered into negotiations with Lange looking to the liquidation of that indebtedness, which Lange not only admitted, but undertook to liquidate. To that end Lange turned over the stock of the Butler Company to the new. directors as security for such payment, which enabled him to continue the business of the Butler Company.
Thereupon the directors of the Paper Company were elected directors of the Butler Company, and, following this, Lange personally raised the money with which to liquidate this indebtedness and the stock of the Butler Company was returned to him. On this point the special master found: “The evidence in this case shows, and indeed the plaintiff’s own allegation is, that the money which was paid by the Butler Company to the Paper Company was raised by Lange personally, and there is no evidence whatever that any coercion or duress was practiced upon him in the endeavor to get him to raise it. The allegation of the bill is that Lange ‘was allowed to cause the plaintiff’ to borrow this money. The evidence indicates that he borrowed the money individually, and so far as this record discloses there is nothing to induce the belief that he was not as anxious as were the Alien Property Custodian’s directors to see that the money was paid.”
Subsequently there was a reorganization of the Butler Company, and this suit was filed upon the theory that Lange borrowed no money from the Paper Company, but, instead, with, the aid of Sehurmann, wrongfully withdrew that amount from its assets, and that, inasmuch as there was an interlocking directorate when the money was recovered from the Butler Company, the situation “raised a presumption of fraud, and placed upon the Paper Company the burden of proving the propriety and fairness of the transaction.”
We see no escape from the conclusion reached by the learned trial justice. At the time of the transaction between the two companies resulting in the loan, Lange was in legal contemplation the Butler Company. He not only was the owner of all its stock, but its active head, authorized to negotiate the loan. The loan was made prior to the seizure of the Paper Company by the Alien Property Custodian, the materiality of which seems to have been overlooked by counsel for appellant.’ Lange himself liquidated the indebtedness. There is not a word of evidence even tending to refute this established fact. The stock of his company was returned to him and the transaction closed. Yet we are asked to presume that he borrowed no money from the Paper Company, and that the money he subsequently paid was obtained from .the assets of the Butler Company, although there is no evidence upon which to base such an inference.
We conclude, therefore, that it is quite immaterial where the burden of proof rested, since the decree was right under any view of the case, and accordingly is affirmed, with costs.
Affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_realapp | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed appellants in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed appellant, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
INDIANA & MICHIGAN ELECTRIC COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 78-2060.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 16, 1979.
Decided May 29, 1979.
E. Allan Kovar and Patricia C. Slovak, Chicago, Ill., for petitioner.
Marjorie S. Gofreed, N.L.R.B., Washington, D. C., for respondent.
Before CUMMINGS and TONE, Circuit Judges, and LEIGHTON, District Judge.
The Honorable George N. Leighton, District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation.
TONE, Circuit Judge.
The issue in this case is whether disciplining union stewards and a union officer more severely than rank-and-file employees for participation in an unlawful strike was inherently destructive of important employee rights and hence a violation of §§ 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(3) and (1), regardless of business justification and absence of anti-union motivation. The National Labor Relations Board held that it was. We disagree and therefore deny enforcement of the Board’s order.
The facts are not in dispute. The employer is a public utility supplying electricity in the area of Fort Wayne, Indiana. On April 26, 1977, approximately 50 of the employees in its line department, all of whom were members of the bargaining unit represented by Local Union No. 1392, International Brotherhood of Electrical Workers, stopped work and walked off the premises. This action violated Article III, § 1 of the collective bargaining agreement, which provides in relevant part as follows:
It is expressly understood and agreed that the services to be performed by the employees covered by this Agreement pertain to and are essential to the operation of a public utility and to the welfare of a public dependent thereon, and in consideration thereof and of the covenants and conditions herein by the Company to be kept and performed (a) the International Brotherhood of Electrical Workers and the Local Union agree that the employees covered by this Agreement, or any of them will not be called upon or permitted to cease or abstain from the continuous performance of the duties pertaining to the positions held by them with the Company in accord with the terms of this agreement .
Four union stewards and one union officer, whom we shall sometimes call union officials, informed their supervisors that they were ill and left with the other strikers. They were not in fact ill. None of the five helped to organize or to lead the walkout. That afternoon three of the stewards joined in an effort to end the strike. The other steward and the union officer did not. All of the strikers returned to work the next morning.
Based upon the five union officials’ own representations as to their actions during the strike, the company took the following disciplinary action: The three stewards who belatedly aided the effort to end the strike each received a one-day suspension. The steward and the officer who did not each received a three-day suspension. The discipline administered to rank-and-file participants consisted only of a written warning.
The union filed charges alleging that the disciplinary action against the five union officials constituted a violation of § 8(a)(3) and § 8(a)(1), and the Board issued a complaint. The Administrative Law Judge held that the company’s action discriminated against five union officials solely on the basis of their positions with the union and thus violated §§ 8(a)(3) and (1). The Board affirmed without opinion and issued an order accordingly. 237 N.L.R.B. No. 35 (1978).
As in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 32, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), the unfair labor practice before us “is grounded primarily in § 8(a)(3).” In that case the Supreme Court set forth the following principles:
First, if it can reasonably be concluded that the employer’s discriminatory conduct was “inherently destructive” of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.
388 U.S. at 34, 87 S.Ct. at 1798. See also Radio Officers’ Union v. NLRB, 347 U.S. 17, 42-48, 74 S.Ct. 323, 98 L.Ed. 455 (1954); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); R. Gorman, Basic Text on Labor Law 335 (1976). We shall assume that disciplining union stewards or officers more severely than rank-and-file members for participating in an illegal strike constitutes discriminatory conduct and is therefore subject to the Great Dane test.
The Board relies solely on the alleged “inherently destructive” nature of the employer’s action. The legitimacy and sub-stantiality of the business justifications advanced by the employer are not contested, nor is the absence of evidence of antiunion motivation. Accordingly, the narrow issue before us is whether the employer’s conduct was “ ‘inherently destructive’ of important employee rights.” NLRB v. Great Dane Trailers, Inc., supra, 388 U.S. at 32, 87 S.Ct. at 1798.
Employees have no right to participate in an illegal strike. Accordingly, if any employee right is threatened here, it must be one relating to union office. The Board has said and we recognize that union office “embodies the essence of protected concerted activities.” See General Motors Corp., 218 N.L.R.B. 472, 477 (1975), enforced, 535 F.2d 1246 (3d Cir. 1976). Employer action that would impair some right or restrict some legitimate activity of union officials and thereby discourage members from holding union office would no doubt have an inherently adverse effect on employee rights. The same is not true, however, of employer action that at most deters union officials from deliberately engaging in clearly unlawful conduct that is both a violation of their duties as employees and union members and a repudiation of their responsibilities as union officials.
In arguing that status as a union official may not be the sole criterion for differentiating among employees in meting out discipline, the Board somewhat misstates the issue. The more severe punishment was not based merely on the officials’ status but upon their breach of the higher responsibility that accompanies that status, a breach that makes their misconduct more serious than that of the rank-and-file.
Until recently the Board has recognized that the higher responsibilities of union officials justify disciplining them more severely than rank-and-file members for participating in unprotected activity. A divided Board shifted to the contrary view in Precision Casting Co., 233 N.L.R.B. No. 35 (1977), and Gould Corp., 237 N.L.R.B. No. 124 (1978). Two of the five members of the Board believe that these cases represent a departure from prior law, and we do also.
To begin with, an employer having a reasonable basis for making such a distinction may discipline fewer than all unlawful strikers. J. P. Weatherby Construction Corp., 182 N.L.R.B. 690, 697 & n. 31 (1970). Cf. N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240, 259, 59 S.Ct. 490, 83 L.Ed. 627 (1939). The higher responsibilities of union officials have been considered to be such a justification in cases prior to Precision Casting.
In Chrysler Corp., Dodge Truck Plant, 232 N.L.R.B. No. 74 (1977), the Board upheld the discharge of a chief steward who was said to have “exercised a leadership role” in an unlawful walkout, id., slip op. at 21. It is on the “leadership role” that the Board seizes in an attempt to distinguish Chrysler, but this attempt will not survive an analysis of that decision. The Board’s conclusion that the chief steward played a leadership role is based largely on incidents of his union office in conjunction with his “presence” among those who walked out. The statement of facts shows that he did not participate in the instigation or organization of the walkout, which was done by other persons, either members of the rank- and-file or line stewards, lower-ranking officials not formally recognized by the employer. Yet the chief steward, who was the highest ranking union official in his department and the only official in that department recognized by the employer, received the most severe punishment. Thus, the Board upheld punishment of a union official more severe than that imposed on others equally or more culpable who were not union officials. Cf. Super Valu Xenia, 228 N.L.R.B. 1254, 1259 (1977).
In Russell Packing Co., 133 N.L.R.B. 194 (1961), the Board upheld the discharge of a steward who had merely participated, with rank-and-file employees not punished by the employer, in the unlawful work stoppage. In other cases, although the disciplined officials were more involved than the rank-and-file employees, the Board has recognized that their status as officials was a proper factor on which to base more severe disciplinary action. University Overland Express, Inc., 129 N.L.R.B. 82, (1960); Stockham Pipe Fittings Co., 84 N.L.R.B. 629 (1949). As the Board said in these cases, union officials are subje.ct to “an even greater duty than the rank-and-file employees to uphold [the contract] provisions.” 84 N.L.R.B. at 629; 129 N.L.R.B. at 92. See Riviera Mfg. Co., 167 N.L.R.B. 772, 775 (1967). The recent Board decisions now relied upon in defense of the order under review seem to us to represent a departure from that principle, and to be erroneous.
Differentiating between union officers and rank-and-file in meting out discipline for participating in a clearly illegal strike did not penalize or deter the exercise of any protected employee right. We believe the employer was entitled to take into account the union officials’ greater responsibility and hence greater fault, and that the resulting different treatment of union officials could not be reasonably considered inherently destructive of important employee rights.
ENFORCEMENT DENIED.
. Two other union officers remained at work and made efforts to end the strike. One other steward in the line department service section arrived at work after the strike began but remained at work the entire day, as did all service employees. Two stewards did not report to work that day for health reasons that are not questioned. None of these employees were disciplined.
. A violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1) when, as is alleged here, the employer’s acts served to discourage union membership or activities. The opinion of the ALJ does not reflect a determination that there was an independent violation of § 8(a)(1) and the Board does not contend that we should treat the two provisions separately. The same proof is therefore required to establish a violation of either section. Inter-Collegiate Press, Graphic Arts Division v. NLRB, 486 F.2d 837, 844 (8th Cir. 1973).
. Arguably, if a union official’s participation in an illegal strike is more serious misconduct than that of a rank-and-file member in view of the former’s greater responsibility, the more severe sanctions are not discriminatory.
. The importance of assuring uninterrupted electrical service to the community, acknowledged in the collective bargaining agreement’s no-strike clause, cannot be disputed. The absence of any damage remedy against the strikers for breach of the no-strike clause of the contract, Sinclair Oil Corp. v. Oil, Chemical and Atomic Workers Union, 452 F.2d 49, 54 (7th Cir. 1971), makes the possibility of disciplinary action the only effective deterrent to violation of that clause.
. The employer’s attempt to prove the absence of antiunion motivation was cut short by the ALJ on the ground that the Board’s General Counsel did not contend that there was an antiunion motivation for the employer’s action.
. Gould followed Precision Casting. The only authority cited by the Board in Precision Casting for the proposition that selectively disciplining union officials for acts performed by officials and members of the rank-and-file violates § 8(a)(3) is Pontiac Motors Division, General Motors Corp., 132 N.L.R.B. 413 (1961). 233 N.L.R.B. No. 35, slip op. at 4 & n. 4. In Pontiac Motors Division, however, the disciplined union committeeman “neither caused nor took part in the work stoppage,” id. at 415, and made efforts to avoid it, in compliance with his contractual obligations. Thus, the Pontiac Motors Division employer actually did discipline the committeeman solely because of his status as a union official and not because of his acts or omissions. Precision Casting, Gould, and the case at bar involve some measure of active participation in the unlawful activity by the disciplined officials; the Board cites no case antedating Precision Casting which holds that the imposition of more severe discipline on participant officials violates § 8(a)(3).
. See Gould Corp., supra, 237 N.L.R.B. No. 124, slip. op. at 4-7 and 8-18 (Truesdale, Member, concurring in part and dissenting in part, and Penello, Member, dissenting).
. For reasons unknown to us, the Board in Chrysler Corp., Dodge Truck Plant appears to evaluate the discharge of the chief steward solely on the basis of § 8(a)(1). As we explained in note 2, supra, this makes no difference to our analysis.
. The ALJ stated in his opinion, which was affirmed by the Board:
Smith was elected to his position as shop steward by the second shift employees in his department on two occasions. He did not cease to be a leader of these people in matters involving labor relations merely by leaving the plant gates. Others, including Respondent’s officials, had every right and reason to regard Smith as the leader of any gathering of Department 9110 employees regardless of where it took place especially if no other Union officials were in the area. Smith regularly spoke for such employees in the plant during short walkouts which had occurred from time to time and had adjusted these problems when they arose. One of Smith’s admitted reasons for coming to the Keweenah [a bar at which employees met during a strike] instead of going home was that grievances were going to be discussed. It was Smith who was contractually responsible for processing grievances for Department 9110 employees at the first step and who was looked to by the employees for this purpose. Not long before the May 31 walkout, it was Smith who informed Manty in the course of a private conversation that Department 9110 employees were getting angry over the failure of the Respondent to adjust grievances and that they were going to take drastic action and were willing to incur possible disciplinary action to resolve these matters. Accordingly, in light of considerations relating to his actions on the afternoon and evening in question, I conclude that Smith not only was engaged in an illegal walkout but that his presence provided this action with his active approval and encouragement, not merely negative leadership, and that the Respondent had ample basis for concluding «that Smith exercised a leadership role in this walkout when it determined to discharge him on May 31.
232 N.L.R.B. No. 74, slip op. at 21.
. The Board has also recognized that the special responsibilities of union officials justify the employer in treating them more favorably than the rank-and-file when doing so facilitates the discharge of those responsibilities. E. g., Paintsmiths, Inc., 239 N.L.R.B. No. 192 (1979) and Scott & Duncan, 239 N.L.R.B. No. 191 (1979) (hiring preference, with resultant layoff of rank-and-file member); Chrysler Corp., 228 N.L.R.B. 1446 (1977) (superseniority for overtime shift selection); Union Carbide Corp., 228 N.L.R.B. 1152 (1977) (superseniority for protection against shift transfer); Limpco Manufacturing Co., 230 N.L.R.B. 406 (1977), pet. denied sub nom. D’Amico v. NLRB, 582 F.2d 820 (3d Cir. 1978) (superseniority for protection against layoff). See Dairylea Cooperative, Inc., 219 N.L.R.B. 656 (1975), enforced sub nom. NLRB v. Milk Drivers & Dairy Employees, Local 338, 531 F.2d 1162 (2d Cir. 1976). Union officials may engage in activities or behavior while performing their duties for which employers could punish rank-and-file members. E. g., Crown Central Petroleum Corp., 177 N.L.R.B. 322 (1969); Thor Power Tool Co., 148 N.L.R.B. 1379 (1964), enforced, 351 F.2d 584 (7th Cir. 1965) (engaging in formal and informal meetings concerning grievances during working hours, and directing obscene and deprecatory remarks at management representatives).
. We are not considering a situation in which the disciplined officials believed that the walkout in which they participated was lawful for any reason.
Question: Are the formally listed appellants in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed appellants are real parties (or only one appellant, and that appellant is a real party)
B. the 1st appellant is not a real party
C. the 2nd appellant is not a real party
D. neither the 1st nor the 2nd appellants are real parties
E. not ascertained
Answer: |
songer_treat | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
CONSUMERS ALUMINUM CO. v. DRESSER.
No. 3404.
Circuit Court of Appeals, Tenth Circuit.
Sept. 18, 1946.
Nathan Kobey and Robert S. Mitchell, both of Denver, Colo., for appellant.
Norma Comstock, of Denver, Colo. (Norman H. Comstock, of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
PER CURIAM.
This is an appeal from an order dismissing a petition of the Consumers Aluminum Company for reorganization under Chapter 10 of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., on the ground that it was not filed in good faith. It is our opinion that the facts disclosed by the record support the conclusion of the trial court.
The order is affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_appel1_7_3 | H | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
UNITED STATES of America, Plaintiff-Appellee, v. Heriberto Fernandez MONSISVAIS, Defendant-Appellant.
No. 89-2187.
United States Court of Appeals, Tenth Circuit.
July 3, 1990.
Presiliano A. Torrez (William L. Lutz, U.S. Atty., with him on the brief), Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.
Robert Ramos (Gary Hill with him on the brief), of Hill & Ramos, El Paso, Tex., for defendant-appellant.
Before SEYMOUR, BARRETT, and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
After filing an unsuccessful motion to suppress evidence, appellant Monsisvais entered a conditional guilty plea to possession of more than 100 kilograms of marijuana with intent to distribute. Mr. Monsisvais asserts on appeal that the discovery of the marijuana in his vehicle was the result of an illegal search and seizure.
I
On February 17, 1989, Bruce Goad, an agent with the United States Border Patrol, was operating a Border Patrol checkpoint station on northbound Interstate 25 near Truth or Consequences, New Mexico. Agent Goad testified that at approximately 7:30 p.m. a sensor alarm alerted the checkpoint’s officers to the presence of a vehicle traveling northbound on Highway 85, a route by which it is possible to bypass the checkpoint and which is commonly used to bypass the checkpoint. Agent Goad then looked over to Highway 85 and saw the headlights of appellant’s northbound vehicle.
Accompanied by another agent, Goad drove north on 1-25 in a marked Border Patrol car to Exit 83 in order to intercept the vehicle. Exit 83 was described by Goad as the point “where State Road 52 and Highway 85 meet, ... there’s an on-ramp for 1-25 north, or if they’re going up the road or turning from 52 they can catch 1-25 south.” Goad elaborated that “there’s three ways you can go right there at the intersection” and that the intersection is “somewhat” confusing and “[pjeople have gotten lost there.”
Agent Goad testified that he stopped his patrol car at the intersection with his lights off and turned his headlights on again as appellant’s vehicle drew near. Goad described the vehicle as a small Chevrolet S — 10 pickup with a camper shell and noted that he could see two occupants in the cab. He said the vehicle was “riding extremely heavy. The rear end was real low on the vehicle, and the front of the vehicle was raised like there was a lot of weight in the rear_” Goad stated that he had previously found aliens concealed in pickup trucks with camper shells, and that the pickup had Arizona plates and “we don’t get many Arizona vehicles on the old highway there.”
According to Goad, appellant’s vehicle slowed as it approached the intersection, and it
appeared to [Agent Goad] that he [appellant] was going to take the on-ramp on to 1-25 north, and I believe that when he saw the border patrol vehicle and the headlights, he corrected his turn. Instead of going on 1-25 north he continued on up the old highway, and eventually took the on-ramp to 1-25 south_
Goad added:
It’s not an uncommon practice for aliens or alien smugglers, either case may be, if they see the border patrol vehicle, they will sometimes instead of entering the freeway northbound in the direction they were going, they will continue up the old highway, if they are using Old Highway 85, and enter the freeway southbound, sometimes they will just continue on up Old Highway 85 ’til it ends.”
Goad further testified that, after noticing “the weight and the two occupants and the out-of-state plates, it kind of aroused my suspicions and we stopped the vehicle on 1-25 southbound, pretty close to the exit.” After questioning appellant as to his citizenship, Goad smelled “a very strong odor of marijuana” emanating from the camper shell. Goad then placed appellant and his passenger under arrest for possession of marijuana. After another agent arrived at the scene with a dog to verify the marijuana odor, the agents opened the camper shell and discovered the marijuana inside.
At the conclusion of the hearing on the Motion to Suppress, the district court announced its findings and conclusions from the bench:
The Court finds that Agent Goad was working the T or C fixed checkpoint when they had a sensor alert on Highway 85, which is the old Highway 85 which now parallels 1-25.
That he observed a car proceeding north on 85. That he stationed himself at the intersection of 85, 52 and 1-25.
That — at least he perceived that when the vehicle noticed his presence, the vehicle continued on 85 and then proceeded to the ramp, which then placed the defendant’s car traveling south on 1-25.
I should state that the reason why the sensor on 85 was placed was an attempt to alert the checkpoint to vehicles which normally were using 85 to circumvent the fixed checkpoint.
Upon noticing the vehicle he noticed that it was riding extremely heavy, using his words. That it had Arizona plates and that it was not common to see an automobile with Arizona plates in that vicinity.
And so he then proceeded to follow the vehicle and then he suspected that it might contain illegal aliens, as there was a camper on the pickup, and so therefore he stopped the vehicle.
[T]hat this is an appropriate and proper Terry stop....
Additionally, the district court held that the subsequent search was proper. Appellant now challenges the legality of both the stop of the vehicle and the resulting search. Because we reverse the district court on the issue of the investigatory stop, we do not address the propriety of the search.
II
This case returns the court to familiar geographic and legal territory; we have frequently been called upon to assess the legality of investigatory stops made by the Border Patrol near the New Mexico-Mexico border. See, e.g., United States v. Pollack, 895 F.2d 686 (10th Cir.1990); United States v. Merryman, 630 F.2d 780 (10th Cir.1980); United States v. Leyba, 627 F.2d 1059 (10th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980); United States v. Sperow, 551 F.2d 808 (10th Cir.), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977).
An investigatory stop need not be supported by probable cause. United States v. Espinosa, 782 F.2d 888 (10th Cir.1986). However, Border Patrol “officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975) (extending Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the border context). Stated alternatively, an investigatory stop is justified when an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884.
In determining whether there is reasonable suspicion to stop a car in the border area, officers may consider any number of factors, including: (1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver’s behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded. 422 U.S. at 884-85, 95 S.Ct. at 2581-82. Additionally, an “officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.” Id. at 885, 95 S.Ct. at 2582 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883).
In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Supreme Court provided further direction for applying the Terry/Brignoni-Ponce standard:
Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the de-taming officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.
449 U.S. at 417-18,101 S.Ct. at 695 (emphasis added).
Incorporating the “totality of the circumstances” relied upon by appellees in support of the instant stop, we fashion the reasonable-suspicion question before us as follows: Whether the Border Patrol agents operating the Truth or Consequences checkpoint may stop every heavily loaded pickup truck bearing a camper shell and out-of-state license plates that travels northbound on this stretch of Highway 85 at 7:30 p.m. For the reasons outlined below, we believe the question must be answered in the negative.
Appellee places considerable significance on the fact that appellant was intercepted while traveling northbound on Highway 85. To be sure, all parties agree that it is possible to bypass the permanent checkpoint by traveling Highway 85. However, due to the state of the record before us, this fact represents the sum total of our knowledge about this stretch of highway. The record is barren of information describing the origins of Highway 85 in this area and thus fails to instruct us as to the types of legitimate traffic that might be expected to make use of the road at this time of day.
For all the record reveals, this stretch of Highway 85 might be the sole artery connecting the city of Truth or Consequences to northbound 1-25, or it may represent a primary means of access from 1-25 to Elephant Butte Reservoir. We certainly are not willing to assume without some evidence that “old” Highway 85 is some decaying dirt road or that checkpoint circumvention is its lone practical utility. Accordingly, we cannot conclude that Highway 85 has no significant legitimate traffic during the early evening hours. In short, the record does not provide us a basis for concluding that a vehicle’s presence on Highway 85 at 7:30 p.m. is at all unusual, much less that it is suggestive of criminal conduct.
Similarly, the record does not enable us to attach any particular significance to the appearance of Arizona license plates in this area. Although Arizona cars must certainly be less common on this stretch of road than those bearing New Mexico plates, we cannot find any basis in the record from which to conclude that Arizona-plated vehicles are any more likely to be transporting aliens near Truth or Consequences than are vehicles bearing the license plates of New Mexico or, for that matter, Texas or Colorado.
We are also unable to ascribe any significance whatsoever to the driving maneuvers of appellant as he approached Highway 85’s intersection with 1-25. As Agent Goad testified, three highways — Highway 85, 1-25 and state road 52 — converge at this point. He admitted that the intersection is confusing and that “[pjeople have gotten lost” there. Thus, any out-of-state traveler might well appear confused approaching the intersection, slow down to determine which exit to take or even make a wrong turn.
Appellee argues that “the truck ... turned south rather than North on [1-25] after spotting the border patrol. This action was considered evasive by the border patrolman.” However, appellant’s driving behavior simply does not elicit the same types of logical inferences and suspicions as do other “evasive” maneuvers encountered by this court in similar cases. For example in Pollack, the appellant’s vehicle first approached the Truth or Consequences checkpoint and turned back south on Interstate 25 after asking for directions to the nearest gas station. After responding to two sensor alerts on northbound Highway 85, agents then discovered the appellant’s vehicle leading a second vehicle that later was found to be carrying contraband. Based on the record before it, the Pollack court referred to the use of a “scout” car in this fashion as “a classic alien smuggling pattern.” 895 F.2d at 687, 689. Similarly, in Merryman the Border Patrol officer made an investigatory stop after observing a pickup truck make a direct U-turn just prior to reaching a permanent checkpoint. 630 F.2d at 781.
More importantly however, we find that the inferences drawn here by Agent Goad from the fact that appellant turned south at the intersection cannot withstand rational analysis. Revisiting Goad’s testimony, he asserted:
It’s not an uncommon practice for aliens or alien smugglers, either case may be, if they see the border patrol vehicle, they will sometimes instead of entering the freeway northbound in the direction they were going, they will continue up the old highway, if they are using Old Highway 85, and enter the freeway southbound, sometimes they will just continue on up Old Highway 85 ’til it ends.
... [I]f they see the border patrol vehicle ... [aliens or alien smugglers] do a little bit of everything.
In other words, no matter which direction appellant might have traveled upon reaching the intersection — north on 1-25, south on 1-25 or straight ahead on Highway 85— his actions would have been “suspicious” to Agent Goad. Plainly, not every suspicion that is “articulable” is reasonable.
We are left to consider the fact that appellant was traveling in a pickup truck with a camper shell and that the vehicle was “riding heavy.” While these facts represent two significant factors detailed in Brignoni-Ponce, they are not automatic indicia of criminal conduct. A pickup truck with a camper shell has any number of legitimate uses — commercial, agricultural and recreational — that may periodically require the transportation of heavy cargo.
Accordingly, we consider it fatal to the legality of the instant stop that the evidence as to these particular aspects of the vehicle has not been supplemented by record evidence of any other salient factors tending to support a reasonable suspicion. As we have demonstrated, the record is silent as to the characteristics of the area in which the vehicle was encountered, the proximity of the area to the border, the usual patterns of traffic on the particular road and information about recent or expected illegal immigrant activity in the area. Additionally, the record does not provide details of the agent’s previous experience with alien traffic beyond Agent Goad’s suggestions that “sometimes” alien smugglers use pickups with camper shells and “sometimes” they travel Highway 85. As such, the record fails to provide the “whole picture” necessary to justify the stopping of this heavily loaded pickup truck on this road at this time of day. Were we to conclude otherwise based on this record, we would effectively emasculate the Terry/Brignoni-Ponce standard in this circuit and render suspect and subject to stop every heavily loaded out-of-state vehicle traveling this stretch of roadway that is capable of transporting and concealing human beings.
Accordingly, we hold that the totality of the specific articulable facts presented in this case, together with the rational inferences to be drawn therefrom, do not reasonably warrant suspicion that appellant’s vehicle contained persons illegally in the country.
The decision of the district court is REVERSED.
. The record does inform us, via Agent Good's testimony, that state road 52 leads to a lake. Thus, it is conceivable that some travelers might use Highway 85 to access state road 52 for recreational purposes.
. By contrast, the record in Leyba provided this court with evidence with which to weigh the significance of a vehicle’s presence on another highway in New Mexico at 2:55 a.m.:
U.S. Highway 180 is considered a major artery for smuggling undocumented aliens from Mexico, northward. During the year prior to Leyba's arrest, 1,163 undocumented aliens were apprehended on Highway 180. Agent Martinez testified that the majority of alien trafficking on Highway 180 took place between 2:00 a.m. and 7:00 a.m. — hours during which traffic at the point of the stop averaged only one or two cars during the entire period. (Leyba testified that he had not seen any cars on Highway 180 in the hour before he was stopped.) In contrast, the average daily traffic on Highway 180 from Silver City to the Route 78 turnoff was 1,031 vehicles per day in 1978. Just southeast of Cliff, New Mexico, there averaged 1,071 vehicles per day; at the town of Cliff on Highway 180 an average of 1,473 vehicles per day was observed, and just north of Cliff, New Mexico, traffic on Highway 180 averaged 878 vehicles per day. Of these vehicles, 14.1% were passenger cars with out-of-state license plates. Officer Martinez, based on past experience, estimated that fifty percent of the smugglers apprehended were driving vehicles bearing out-of-state plates.
627 F.2d at 1061 (footnote included parenthetically). Similarly, in Sperow, we affirmed the stop of a vehicle traveling a mile and one-half from the Mexico border at 2 a.m. in part because “testimony showed that the ranchers in the area were not prone to drive the roads in question at 2 a.m. so that it was inferable that the vehicle had passed the border.” 551 F.2d at 810-11.
. We do not suggest that a sufficient documentation in the record of an agent’s reasonable suspicion must contain any particular number or combination of the factors suggested in Brig-noni-Ponce. We simply hold up those factors as a benchmark by which tq demonstrate the woeful lack of information submitted to support the instant stop.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer: |
songer_respond1_8_3 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
In re ITALIAN IMPORTING CO. ROSSI v. ARBER.
(Circuit Court of Appeals, Seventh Circuit.
November 10, 1925.
Rehearing Denied December 9, 1925.)
Nos. 3543, 3544.
Bankruptcy <®=>288(l) — Court held without Jurisdiction in summary proceedings to commit defendant for contempt for failure to obey turn-over order.
Bankruptcy court not being in possession or control of moneys paid to. defendant by bankrupt corporation six months before petition in bankruptcy, held, that it had no jurisdiction in summary proceedings to commit him for contempt for failure to turn over such money as required by order, especially where defendant was contending that such money had been paid out for benefit of corporation before bankruptcy.
Petition to Review and Revise and Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois.
In the matter of the Italian Importing Company. Petition by Frederick B. Arber, trustee, for turn-over order against Nello Rossi. From an order granting the petition, and an order committing defendant for contempt for failure to obey, defendant petitions to review and revise and appeals.
Reversed.
Clarence W. Heyl, of Peoria, Ill., for petitioner and appellant.
Chester F. Barnett, of Peoria, Ill., for respondent and appellee.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
PAGE, Circuit Judge.
This case is here both by petition to review and revise and by appeal to test the correctness of a turn-over order entered April 12, 1924, and an order entered December 18, 1924, committing Rossi for contempt for failure to turn over the money required by the previous order.
The petition for the turn-over order, filed March 27, 1923, by the trustee of bankrupt, shows that the moneys directed to be turned over were had by Rossi from the bankrupt, on cheeks and otherwise, in July and September, 1921. Other than the presumption, if any, of the continuing possession, it does not appear that Rossi possessed the money later than September of that year.
To the turn-over petition, Rossi filed a motion, asking that he be dismissed because of lack of jurisdiction in the court to enter a summary order. In that motion was a denial that he had possession of any of the property, and an assertion that any funds that had theretofore come to his hands had been paid to creditors prior to the time of the filing of the petition in bankruptcy. After a hearing, the moneys, which in the petition were alleged to have come to the possession of Rossi more than six months before bankruptcy, were made the subject of the turn-over order.
In August, following, a motion was made for a rule upon Rossi to show cause why he should not be attached for contempt for failure to pay over the moneys. To that motion Rossi filed a sworn answer, averring that all of the moneys that came to his hands from the bankrupt had been paid out; that he was a bankrupt, and had no money or property with which to comply with the turn-over order, etc.
As to the items to be turned over, the order found, in part: “Said Nello Rossi has retained possession and control of said proceeds, and has never turned the same, or any part thereof, over to said bankrupt corporation.”
As to another part, the finding is: “That no part thereof has ever been returned to the said bankrupt corporation; that ever since the receipt of said sum of $3,000 the said Nello Rossi has been in possession and control of the same.”
As to another item, the finding is: “That no part thereof has ever been returned to said bankrupt corporation; that said sum of $550 ever since said time has been in the possession and under the control of the said Nello Rossi.”
Other than the presumption of continuing possession, if any, we find no evidence in the record to support any such finding.
The contempt order, after excusing Rossi from the payment of $2,500 of the sum eovered by the turn-over order, finds: “The said Nello Rossi now has in his possession or under Ms control the sum of $7,550.” (Italics ours.) It may he noted, but we deem it unnecessary to the decision of this matter, that the court wholly rejected the testimony of Rossi as unworthy of belief.
Three reasons are presented for reversal: (a) That the proceeding was a summary one, and, under the circumstances, the court had no jurisdiction to so proceed; (b) that the plaintiff’s answer purged him of contempt; (c) that there could be no committal for contempt except upon and after a finding of present ability to pay.
Not within four months, but more than six months, before bankruptcy, the moneys in question were paid by bankrupt to Rossi. The fact that he was president of bankrupt does not seem to have had anything to do with it, unless it may be said that that enabled him to get possession of the money. If Rossi’s testimony, as found by the District Court, was unworthy of belief, then there is no explanation in the record as to why or for what purpose the moneys were paid to him; but the fact remains in the record that he was at all times contending that the moneys received by him had been paid out for the benefit of the corporation before bankruptcy.
We are of opinion that there never was, in the bankruptcy court, any possession or control of the moneys, paid to Rossi six months before the petition in bankruptcy and covered by the turn-over order, and that therefore this ease is controlled by Taubel, etc., Co. v. Fox, 264 U. S. 433, 44 S. Ct. 396, 68 L. Ed. 770, and eases there cited. The court did not have jurisdiction to proceed summarily. Inasmuch as this must dispose of the ease, the consideration of the other questions becomes unimportant.
The order of the District Court is reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
Answer: |
songer_usc2 | 28 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 12. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
FASH, School District Treasurer, et al. v. FIRST NAT. BANK OF ALVA, OKL., et al.
No. 1455.
Circuit Court of Appeals, Tenth Circuit.
March 30, 1937.
W. L. Houts and H. C. Crandall, both of Alva, Okl., for appellants.
C. H. Mauntel and F. B. H. Spellman, both of Alva, Okl., for appellees.
Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.
BRATTON, Circuit Judge.
The First National Bank of Alva, Okl., was the designated and acting depository of school district No. 1 in that city. The bank was declared insolvent and suspended business on March 14, 1932, having $6,258.-61 of school money on deposit at that time. Following our decision in Kavanaugh v. Fash, 74 F.(2d) 435, sustaining the pledge of certain assets to secure the deposit, the treasurer of the school district and the treasurer of the county instituted this action in the state court against the bank and the receiver to foreclose the lien. A decree of foreclosure was sought for the amount of the deposit with interest thereon at the rate provided by law, costs and expenses of preserving the securities and making sale of them, and reasonable attorneys’ fees. After the cause had been removed to the United States District Court the bank and the receiver answered that at all times since receipt of the mandate in the former case, the receiver had been ready, willing, and anxious to pay the amount of the deposit, but that plaintiffs had demanded ’ interest, expenses, and attorneys’ fees in addition.
The court sustained the lien for the amount of the deposit, but denied interest after insolvency and attorneys’ fees. Plaintiffs appealed.
It is urged that the court should have remanded the cause t'o the state court. The action is against a national bank and its receiver. It relates to the winding up of the affairs of the bank and arises under the laws of the United States. It was, therefore, removable. Judicial Code § 24 par. (16), 28 U.S.C.A. § 41(16); International Trust Co. v. Weeks, 203 U.S. 364, 27 S.Ct. 69, 51 L.Ed. 224; Larabee Flour Mills v. First Nat. Bank (C.C.A.) 13 F.(2d) 330; Fleming v. Gamble (C.C.A.) 37 F.(2d) 72; Guarantee Co. of North Dakota v. Hanway (C.C.A.) 104 F. 369.
The comptroller is required in liquidating the affairs of an insolvent national bank to make ratable distribution of all money coming from the receiver on all claims which have been proved to his satisfaction or adjudicated in a court of competent jurisdiction. 12 U.S.C.A. § 194. And for the purpose of making such distribution claims of creditors are to be determined as of the date on which insolvency was declared. Their value at that time is the basis of apportionment in paying dividends. White v. Knox, Ill U.S. 784, 4 S.Ct. 686, 28 L.Ed. 603; Merrill v. National Bank of Jacksonville, 173 U.S. 131, 19 S.Ct. 360, 43 L.Ed. 640; Kershaw v. Jenkins (C.C.A.) 71 F. (2d) 647; American Surety Co. v. De Carle (C.C.A.) 25 F.(2d) 18; Kennedy v. Boston-Continental Nat. Bank (C.C.A.) 84 F.(2d) 592.
It is well settled that interest accruing on a claim after insolvency cannot be paid unless the assets are sufficient to pay all claims in full, because to pay interest on one while others are .unpaid in whole or in part would violate the exaction of ratable distribution of assets. White v. Knox, supra; Kershaw v. Jenkins, supra; Anderson v. Missouri State Life Ins. Co. (C.C.A.) 69 F.(2d) 794; Richman v. Firs.t Methodist Episcopal Church (C.C.A.) 76 F. (2d) 344; Pinckney v. Wylie (C.C.A.) 86 F.(2d) 541; American Nat. Bank v. Williams (C.C.A.) 101 F. 943. And that rule applies to a claim for a deposit secured by pledged collateral. Interest cannot be paid on such a claim whether it be public money deposited pursuant to the provisions of law, Douglass v. Thurston County (C.C.A.) 86 F.(2d) 899; In re American Bank & Trust Co. of Ardmore, 176 Okl. 202, 55 P.(2d) 470; or money of an individual deposited voluntarily, Gamble v. Wimberly (C.C.A.) 44 F.(2d) 329. Some courts have suggested that where a receiver is unreasonable or vexatious in resisting a claim, interest may be allowed during the delay thus occasioned. Leach v. Sanborn State Bank, 210 Iowa, 613, 231 N.W. 497, 69 A.L.R. 1206; Bank of America Nat. T. & S. Ass’n v. California S. & C. Bank, 218 Cal. 261, 22 P.(2d) 704. It likewise has been intimated that interest may be awarded if the receiver is otherwise at fault in administering the trust. Richardson v. Louisville Banking Co. (C. C.A.) 94 F. 442. But there is no need to explore that field, as it is not contended that the receiver acted in that manner in the institution of the action in which he failed, the sole contention being that interest should be allowed from the date on which insolvency was declared to the date of payment.'
It is urged that the employment of attorneys to represent the school district in the former action which involved the validity of the pledge was necessary; that the attorneys rendered valuable services in causing the pledge to be sustained; that the treasurer of the school district did not have any fund upon which he could draw to pay the attorneys; and that reasonable attorneys’ fees should have been allowed. That the employment of attorneys was necessary and that they rendered valuable services may be freely conceded. But that is not the test. The National Bank Act (12 U.S. C.A. § 21 et seq.) provides a complete and exclusive code for the liquidation of the affairs of an insolvent national bank. Cook County Nat. Bank v. United States, 107 W.S. 445, 2 S.Ct. 561, 27 L.Ed. 537. And the allowance of attorneys’ fees here would constitute a plain impingement upon the provision which requires ratable distribution of the assets among creditors having approved or adjudicated claims. Citizens’ Bank & Trust Co. v, Thornton (C.C.A.) 174 F. 752; Dunnagan v. Best (D.C.) 59 F. (2d) 795.
Concluding that the court was right in disallowing interest after insolvency and attorneys’ fees, the decree is affirmed.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 12. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_casetyp1_7-3-3 | J | 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 - commercial disputes".
CARNEGIE-ILLINOIS STEEL CORPORATION v. BERGER.
No. 6954.
Circuit Court of Appeals, Third Circuit.
June 30, 1939.
As Amended Aug. 9, 1939.
H. Eastman Hackney, F. T. Ikeler, John C. Bane, Jr., and Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., for appellant.
Charles Alvin Jones, of Pittsburgh, Pa., George H. McWherter, of Greensburg, Pa., and Arthur'McKean, of New Kensington, Pa., for appellee.
Before BIGGS, CLARK, and BUF-FINGTON, Circuit Judges.
BIGGS, Circuit Judge.
A bill of complaint was filed by the appellant in the court below seeking to have certain sums in its account in the First National Bank & Trust Company of Monessen, an insolvent national bank, declared to be subject to a trust in its favor, either by express agreement or ex maleficio, or, payable as a preferred claim. Specifically, the pleading shows that the appellant maintained a payroll account at the Bank and that upon October 13, 1931, its balance was $21,723.10, $20,000 of which had been deposited on October 10, 1931, three days before the Bank suspended business by resolution of its board of directors. The appellant claims that the appellee, the receiver appointed by the Comptroller of the Currency for the Bank, should be compelled to pay to the appellant the entire balance due it. This assertion is based upon the contention that the deposits of the appellant were made pursuant to a contract entered into between the appellant and the Bank dated January 24, 1905. If this contention be not tenable, then the appellant asserts that the officers and directors of the Bank committed a fraud upon the appellant when the Bank accepted the deposit of $20,000 upon October 10, 1931, because they knew or should have known that the Bank was hopelessly insolvent and that therefore this sum is recoverable by it. In each instance the appellant indicates its willingness to off-set against the sums claimed by it amounts received by way of the payment of dividends, as will appear hereafter.
An answer was filed to the bill by the appellee, denying the appellant’s claim to a preferential payment. By ah amendment to the answer, the appellee alleges that the acceptance by the appellant of dividends paid to general creditors and delay in asserting its claimed preference estops the appellant, from recovery. The appellee filed a motion to dismiss the bill upon the ground of laches. The court below granted the motion. The appellant then filed a petition for reconsideration and for leave to amend. The court below required the appellant to suggest its proposed amendment by motion. After consideration, the District Judge denied the motion and dismissed the bill of complaint. This is the order appealed from.
Was the Appellant’s Balance the Subject of an Express Trust?
We assume that if the relationship of trustee and cestui que trust existed by express agreement between the appellee and the appellant, this relationship would persist in the face of the liquidation proceedings if there was a res in existence to which the trust would attach. The agreement of January 24, 1905, between the appellant and the Bank, however, is not made part of the bill. From the pleading it appears simply that the appellant deposited with the Bank funds or credits to meet the payroll at its plant. The .Bank paid the checks issued by the appellant upon presentation in ordinary course. The $20,-000 deposit made by the appellant upon October 10, 1931, was intended, with the balance of $1,723.10 already in the account, to meet the payroll coming due upon October 15, 1931.
There are no allegations that would lead to a conclusion that the appellant’s balance was of the nature of a trust fund or res. The deposits made by the appellant were not in any wise segregated or separated from the general assets or credits of the Bank. The appellant’s contention that the agreement of January, 1905, had the effect of creating a status for its deposits not as sums of money or credits “ * * but (as) some other kind of personal property, perhaps a chest of table silverware, left for safe-keeping in the Bank’s vault * * * ” is wholly untenable. While it is true that the appellant’s account was an agency account and the appellant paid the Bank fees based upon the number of paychecks it cashed, it is entirely apparent that the Bank received the deposits of the appellant upon substantially the same basis as those of other depositors. See Santee Timber Corporation v. Elliott, 4 Cir., 70 F.2d 179, 182, 93 A.L.R. 874, and the cases cited under heading (8) of that opinion.
We must conclude that here was no trust by express agreement and that in fact there existed no res upon which such a trust could be predicated.
Was a Trust Ex Maleficio Created in so far as the $20,000 Deposit is Concerned ?
The Comptroller of the Currency took charge of the Bank’s affairs upon October 13, 1931. A receiver was appointed soon thereafter. He took possession of the assets of the Bank and entered upon its liquidation. The claims of creditors were presented promptly to the receiver. The appellant’s original claim was filed with him upon January 12, 1932 as a general claim upon the balance due upon its open account. The claim was allowed by the Comptroller upon April 29, 1932. Upon June 3, 1932, a first dividend was paid by the receiver to general creditors. The appellant received and accepted its share of this dividend. Thereafter, upon August 17, 1932, ten months after the closing of the Bank and eight months after the appellant had filed its general claim, the appellant filed with the receiver its first claim for preference based upon the theory of an express trust arising by reason of the agreement of January, 1905. The Comptroller disallowed this claim for preference upon May 22, 1933.
Upon June 6, 1933, a year after the first dividend to general creditors, the appellant filed with the receiver its second claim for preference, advancing for the first time the theory of a trust ex maleficio basing it upon the ground set forth in the first paragraph of this opinion. This claim was promptly disallowed by the Comptroller and the appellant was notified of the disallowance upon June 28, 1933.
The appellant then received and accepted two additional dividends; one being paid upon September 30, 1933; the other, upon December 10, 1934. The three dividends thus received by the appellant totalled 30% of its claim. Thereafter, and upon June 3, 1935, nearly two years after the rejection of its last claim for preferential payment, the appellant filed its bill of complaint in the suit at bar. A fourth dividend of 5% was paid to the general creditors of the Bank on December 20, 1937, between the time of the filing of the original bill and the filing of its motion to amend its original bill. The appellant also accepted this dividend.
Assuming, as the pleading alleges, that the officers and directors of the Bank were guilty of fraud in that they received the deposit of $20,000 made by the appellant upon October 10, 1931, knowing that the Bank was hopelessly and irretrievably insolvent, can it be said- that a trust ex maleficio was thereby created requiring that sum to be paid to the appellant as a preference? Or, if we gó one step further and assume the existence of such a trust, was the court below correct in holding that the appellant had waived its rights by reason of its laches and is foreclosed from asserting a preference ?
We must assume that the officers of the Bank knew of its insolvent condition and received the appellant’s last deposit in the light of such knowledge. We think that the law may be stated as follows. If a bank accepts a deposit with knowledge upon the part of its officers and directors that it is hopelessly and irretrievably insolvent, there is a fraud perpetrated upon the depositor. The depositor may thereupon rescind the contract of deposit and recover the sum paid in or ask that a constructive trust be declared in his favor upon its proceeds. Poole v. Elliott, 4 Cir., 76 F.2d 772, 774; St. Louis & S. F. R. Co. v. Johnston, 133 U.S. 566,10 S.Ct. 390, 33 L.Ed. 683; Quin v. Earle, C.C., 95 F.2d 728; Illinois Cent. R. Co. v. Rawlings, 5 Cir., 66 F.2d 146. If, upon the other hand, the depositor does not rescind his contract but treats it as if it were in force and of effect he must be deemed to have ratified it. Having ratified it, he must collect the amount of his claim upon the same basis as all other general creditors.
The fundamental question presented for our determination in the case at bar is therefore whether or not the appellant, having pursued the course of conduct which we have described, three and one half' years after the insolvency of the Bank and nearly two years after the rejection of its latest claim for preference may proceed to elect a new remedy, rescind its contract of deposit and effect a constructive trust upon the general estate of the insolvent Bank. We hold that the appellant by its course of conduct has lost its right to elect a different remedy than that which it originally pursued and may not force upon the receiver of the Bank a rescission of the contract of deposit or cause a constructive trust to be declared upon the credit which it that day placed in the Bank.
We entertain no doubt but that the appellant has been guilty of laches in asserting its present position. If the appellant was a cestui que trust of the Bank in respect to any fund or credit placed therein under the 1905 agreement, it was aware of that fact when it filed its general claim upon January 12, 1932. It waited eight months after filing its general claim before asserting any preference whatsoever. It waited nine months more before asserting any claim for preference resulting from a trust arising ex maleficio. The appellant delayed almost two years after the rejection by the receiver of that claim for preference before filing its bill of complaint. No adequate reason is stated by the appellant as to why such a period of time was permitted to elapse before it asserted in a court of equity a claim based upon fraud. Three and a half years after the seizure of the Bank by the Comptroller and upon the receipt of three dividends as a general creditor totalling 30- per cent-um of its claims, the appellant for the first time came into a court of equity. Nor is this all.
As the District Judge pointed out, the appellant did not allege any lack of knowledge of the alleged fraud in its bill of complaint. It did this for the first time in the amendments to the bill of complaint which it sought to file upon April 27, 1938. By the time this was done, it had received its fourth dividend. Its allegations of lack of knowledge of the fraud of the Bank' were not asserted until a date over six years after the closing of the Bank.
The appellant may not now rescind its contract of deposit or gain the advantage ■ of the doctrine of constructive trust. There is little in the appellant’s position which appeals to a court of equity.
Upon the other hand the appellee is engaged in the liquidation of a banking institution. In fulfilling that function he is required, not only in the interests of individual depositors and creditors, but as a matter of public concern, to proceed with that liquidation promptly and in accordance with law. To permit the appellant to change its position now would work havoc in the orderly administration of the affairs of the Bank. As was said in Poole v. Elliott, supra, at pages 774, 775, “ * * we do not think that under the circumstances here we should send the case back for the pleadings to be amended and further proofs adduced. Plaintiff waited more than sixteen months after the appointment of receivers in the court below before filing his petition. More than three years have now elapsed; and, in the meantime, the liquidation of the bank’s affairs has gone forward, claims have been proven, the secured debts have been discharged and a dividend has been paid to general creditors. To permit a depositor, at this late day, to raise the contention that assets which the receivers have already administered were impressed with a trust in behalf of depositors during the period of hopeless insolvency, would result in endless confusion and probably in much injustice to other persons interested in the prompt winding up of the estate.” See also Standard Oil Co. v. Elliott, 4 Cir., 80 F.2d 158, at pages 160 and 161.
The decree of the court below is affirmed.
It is dear that the allegation of the bill of complaint-that the Bank suspended business in accordance with a resolution of its board of directors upon October 10, 1931, is’ erroneous.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer: |
sc_lcdisposition | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
STATE FARM FIRE AND CASUALTY COMPANY, Petitioner
v.
UNITED STATES, ex rel. Cori RIGSBY, et al.
No. 15-513.
Supreme Court of the United States
Argued Nov. 1, 2016.
Decided Dec. 6, 2016.
Kathleen M. Sullivan, New York, NY, for Petitioner.
Tejinder Singh, Bethesda, MD, for Respondents.
John F. Bash for the United States as amicus curiae, by special leave of the Court, supporting the Respondents.
Jeffrey B. Wall, Sullivan & Cromwell LLP, Washington, DC, Sheila L. Birnbaum, Kathleen M. Sullivan, Douglas W. Dunham, Ellen P. Quackenbos, Bert L. Wolff, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioner.
Tejinder Singh, Goldstein & Russell, P.C., Bethesda, MD, Maison Heidelberg, Watson Heidelberg, Jones PLLC, Flowood, MS, William E. Copley, August J. Matteis, Jr., Derek Y. Sugimura, Pamira Shah Matteis, Matthew S. Krauss, Timothy M. Belknap, Weisbrod Matteis & Copley PLLC, Washington, DC, for Respondents.
Justice KENNEDY delivered the opinion of the Court.
This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) requirement that certain complaints must be sealed for a limited time period. See 31 U.S.C. § 3730(b)(2). There are two questions presented before this Court. First, do any and all violations of the seal requirement mandate dismissal of a private party's complaint with prejudice? Second, if dismissal is not mandatory, did the District Court here abuse its discretion by declining to dismiss respondents' complaint?
I
A
The FCA imposes civil liability on an individual who, inter alia, "knowingly presents ... a false or fraudulent claim for payment or approval" to the Federal Government. § 3729(a)(1)(A). Almost unique to the FCA are its qui tam enforcement provisions, which allow a private party known as a "relator" to bring an FCA action on behalf of the Government. § 3730(b)(1) ; Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768, n. 1, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (listing three other qui tam statutes). The Attorney General retains the authority to intervene in a relator's ongoing action or to bring an FCA suit in the first instance. §§ 3730(a) -(b).
This system is designed to benefit both the relator and the Government. A relator who initiates a meritorious qui tam suit receives a percentage of the ultimate damages award, plus attorney's fees and costs. § 3730(d). In turn, " 'encourag[ing] more private enforcement suits' " serves " 'to strengthen the Government's hand in fighting false claims.' " Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 298, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010).
The FCA places a number of restrictions on suits by relators. For example, under the provision known as the "first-to-file bar," a relator may not " 'bring a related action based on the facts underlying [a] pending action.' " Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U.S. ----, ----, 135 S.Ct. 1970, 1978, 191 L.Ed.2d 899 (2015) (quoting § 3730(b)(5) ; emphasis deleted). Other FCA provisions require compliance with statutory requirements as express conditions on the relators' ability to bring suit. The paragraph known as the "public disclosure bar," for instance, provided at the time this suit was filed that " '[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions ... unless the action is brought by the Attorney General or ... an original source of the information.' " Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, supra, at 283, n. 1, 285-286, 130 S.Ct. 1396 (quoting 31 U.S.C. § 3730(e)(4)(A) (2006 ed.) ; footnote omitted).
The FCA also establishes specific procedures for the relator to follow when filing the complaint. Among other things, the relator must serve on the Government "[a] copy of the complaint and written disclosure of substantially all material evidence and information the [relator] possesses." § 3730(b)(2). Most relevant here, the FCA provides: "The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders." Ibid.
B
Petitioner State Farm is an insurance company. In the years before Hurricane Katrina, petitioner issued two types of homeowner-insurance policies that are relevant in this case: (1) Federal Government-backed flood insurance policies and (2) petitioner's own general homeowner insurance policies. The practical effect for homeowners who were affected by Hurricane Katrina and who purchased both policies was that petitioner would be responsible for paying for wind damage, while the Government would pay for flood damage. As the Court of Appeals noted, this arrangement created a potential conflict of interest: Petitioner had "an incentive to classify hurricane damage as flood-related to limit its economic exposure." 794 F.3d 457, 462 (C.A.5 2015).
Respondents Cori and Kerri Rigsby are former claims adjusters for one of petitioner's contractors, E.A. Renfroe & Co. Together with other adjusters, they were responsible for visiting the damaged homes of petitioner's customers to determine the extent to which a homeowner was entitled to an insurance payout. According to respondents, petitioner instructed them and other adjusters to misclassify wind damage as flood damage in order to shift petitioner's insurance liability to the Government. See id., at 463-464 (summarizing trial evidence).
In April 2006, respondents filed their qui tam complaint under seal. At the Government's request, the District Court extended the length of the seal a number of times. In January 2007, the court lifted the seal in part, allowing disclosure of the qui tam action to another District Court hearing a suit by E.A. Renfroe against respondents for purported misappropriation of documents related to petitioner's alleged fraud. See E.A. Renfroe & Co. v. Moran, No. 2:06-cv-1752 (ND Ala.). In August 2007, the District Court lifted the seal in full. In January 2008, the Government declined to intervene.
In January 2011, petitioner moved to dismiss respondents' suit on the grounds that they had violated the seal requirement. The parties do not dispute the essential background. In the months before the seal was lifted in part, respondents' then-attorney, one Dickie Scruggs, e-mailed a sealed evidentiary filing that disclosed the complaint's existence to journalists at ABC, the Associated Press, and the New York Times. All three outlets issued stories discussing the fraud allegations, but none revealed the existence of the FCA complaint. Respondents themselves met with Mississippi Congressman Gene Taylor, who later spoke out in public against petitioner's purported fraud, although he did not mention the existence of the FCA suit at that time. After the seal was lifted in part, Scruggs disclosed the existence of the suit to various others, including a public relations firm and CBS News.
At the time of the motion to dismiss in 2011, respondents were represented neither by Scruggs nor by any of the attorneys who had worked with him. In March 2008, Scruggs withdrew from respondents' case after he was indicted for attempting to bribe a state-court judge. Two months later, the District Court removed the remaining Scruggs-affiliated attorneys from the case, based on their alleged involvement in improper payments made from Scruggs to respondents. The District Court did not punish respondents themselves for the payments because they were not made "aware of the ethical implications" and, as laypersons, "are not bound by the rules of professional conduct that apply to" attorneys. App. 21.
In deciding petitioner's motion the District Court considered only the seal violations that occurred before the seal was lifted in part, reasoning the partial lifting in effect had mooted the seal. Applying the test for dismissal set out in United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242, 245-247 (C.A.9 1995), the District Court balanced three factors: (1) the actual harm to the Government, (2) the severity of the violations, and (3) the evidence of bad faith. The court decided against dismissal. Petitioner did not request some lesser sanction. The case went to trial, resulting in a victory for respondents on what the Court of Appeals referred to as a "bellwether" claim regarding a single damaged home. 794 F.3d, at 462.
The Court of Appeals for the Fifth Circuit affirmed the denial of petitioner's motion to dismiss. The court recognized that the case presented two related issues of the first impression under its case law: (1) whether a seal violation requires mandatory dismissal of a relator's complaint and, if not, (2) what standard governs a district court's decision to dismiss. The court noted that the Courts of Appeals for the Second and Ninth Circuits had held that the FCA does not require automatic dismissal for a seal violation, while the Court of Appeals for the Sixth Circuit had held that dismissal is mandatory. See United States ex rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 998 (C.A.2 1995) ; United States ex rel. Lujan v. Hughes Aircraft Co., supra, at 245; United States ex rel. Summers v. LHC Group Inc., 623 F.3d 287, 296 (C.A.6 2010) ; see also United States ex rel. Smith v. Clark/Smoot/Russell, 796 F.3d 424, 430 (C.A.4 2015) (following Pilon ).
After a careful analysis, the Court of Appeals for the Fifth Circuit held automatic dismissal is not required by the FCA. 794 F.3d, at 470-471. It then considered the same factors the District Court had weighed and came to a similar conclusion. Id., at 471-472. First, the Court of Appeals held the Government was in all likelihood not harmed by the disclosures because none of them led to the publication of the pendency of the suit before the seal was lifted in part. Second, the Court of Appeals determined the violations were not severe in their repercussions because respondents had complied with the seal requirement when they first filed their suit. Third, the Court of Appeals assumed, without deciding, that the bad behavior of respondents' then-attorney could be imputed to respondents; but it held that, even presuming the attribution of bad faith, the other factors favored respondents.
This Court granted certiorari, 578 U.S. ----, 136 S.Ct. 2386, 195 L.Ed.2d 761 (2016), and now affirms.
II
A
Petitioner's primary contention is that a violation of the seal provision necessarily requires a relator's complaint to be dismissed. The FCA does not enact so harsh a rule.
Section 3730(b)(2)'s text provides that a complaint "shall" be kept under seal. True, this language creates a mandatory rule the relator must follow. See Rockwell Int'l Corp. v. United States, 549 U.S. 457, 464, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007) ("As required under the Act, [the relator] filed his complaint under seal ..."); see also Kingdomware Technologies, Inc. v. United States, 579 U.S. ----, ----, 136 S.Ct. 1969, 1977, 195 L.Ed.2d 334 (2016) ("[T]he word 'shall' usually connotes a requirement"). The statute says nothing, however, about the remedy for a violation of that rule. In the absence of congressional guidance regarding a remedy, "[a]lthough the duty is mandatory, the sanction for breach is not loss of all later powers to act." United States v. Montalvo-Murillo, 495 U.S. 711, 718, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990).
The FCA's structure is itself an indication that violating the seal requirement does not mandate dismissal. This Court adheres to the general principle that Congress' use of "explicit language" in one provision "cautions against inferring" the same limitation in another provision. Marx v. General Revenue Corp., 568 U.S. ----, ----, 133 S.Ct. 1166, 1177, 185 L.Ed.2d 242 (2013). And the FCA has a number of provisions that do require, in express terms, the dismissal of a relator's action. Supra, at 440 (citing § 3730(b)(5) ); see also §§ 3730(e)(1)-(2) ("[n]o court shall have jurisdiction" over certain FCA claims by relators against a member of the military or of the judicial, legislative, or executive branches). It is proper to infer that, had Congress intended to require dismissal for a violation of the seal requirement, it would have said so.
The Court's conclusion is consistent with the general purpose of § 3730(b)(2). The seal provision was enacted in the 1980's as part of a set of reforms that were meant to "encourage more private enforcement suits." S. Rep. No. 99-345, pp. 23-24 (1986). At the time, "perhaps the most serious problem plaguing effective enforcement" of the FCA was "a lack of resources on the part of Federal enforcement agencies." Id., at 7. The Senate Committee Report indicates that the seal provision was meant to allay the Government's concern that a relator filing a civil complaint would alert defendants to a pending federal criminal investigation. Id., at 24. Because the seal requirement was intended in main to protect the Government's interests, it would make little sense to adopt a rigid interpretation of the seal provision that prejudices the Government by depriving it of needed assistance from private parties. The Federal Government agrees with this interpretation. It informs the Court that petitioner's test "would undermine the very governmental interests that the seal provision is meant to protect." Brief for United States as Amicus Curiae 10.
B
Petitioner's arguments to the contrary are unavailing. First, petitioner urges that because the seal provision appears in the subsection of the FCA creating the relator's private right of action, Congress intended to condition the right to bring suit on compliance with the seal requirement. It is true that, as discussed further below, the Court sometimes has concluded that Congress conditioned the authority to file a private right of action on compliance with a statutory mandate. E.g., Hallstrom v. Tillamook County, 493 U.S. 20, 25-26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989). There is no textual indication, however, that Congress did so here.
Section 3730(b)(2) does not tie the seal requirement to the right to bring the qui tam suit in conditional terms. As noted above, the statute just provides: "The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders."
The text at issue in Hallstrom, by contrast, was quite different than the statutory language that controls here. The Hallstrom statute, part of the Resource Conservation and Recovery Act of 1976, provided: " 'No action may be commenced ... prior to sixty days after the plaintiff has given notice of the violation' " to the Government. 493 U.S., at 25, 110 S.Ct. 304.
Petitioner cites two additional cases to support its argument, but those decisions concerned statutes that used even clearer conditional words, like "if" and "unless." See United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 161, 34 S.Ct. 550, 58 L.Ed. 893 (1914) (statute allowed creditors of Government contractors to bring suit " 'if no suit should be brought by the United States within six months from the completion and final settlement of said contract' "); McNeil v. United States, 508 U.S. 106, 107, n. 1, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (statute provided that " '[a]n action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency' ").
Again, the FCA's structure shows that Congress knew how to draft the kind of statutory language that petitioner seeks to read into § 3730(b)(2). The applicable version of the public disclosure bar, for example, requires a district court to dismiss an action when the underlying information has already been made available to the public, " 'unless' " the plaintiff is the Attorney General or an original source. Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S., at 286, 130 S.Ct. 1396.
Second, petitioner contends that because this Court has described the FCA's qui tam provisions as "effecting a partial assignment of the Government's damages claim," Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S., at 773, 120 S.Ct. 1858 adherence to all of the FCA's mandatory requirements-no matter how small-is a condition of the assignment. This argument fails for the same reason as the one discussed above: Petitioner can show no textual indication in the statute suggesting that the relator's ability to bring suit depends on adherence to the seal requirement.
Third, petitioner points to a few stray sentences in the Senate Committee Report that it claims support the mandatory dismissal rule. As explained above, however, the Report's recitation of the general purpose of the statute is best understood to support respondents. Supra, at 442. And, furthermore, because the meaning of the FCA's text and structure is "plain and unambiguous, we need not accept petitioner['s] invitation to consider the legislative history." Whitfield v. United States, 543 U.S. 209, 215, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005).
III
Petitioner's secondary argument is that the District Court did not consider the proper factors when declining to dismiss respondents' complaint or, at a minimum, that it was plain error not to consider respondents' conduct after the seal was lifted in part. This Court holds the District Court did not abuse its discretion by denying petitioner's motion, much less commit plain error. In light of the questionable conduct of respondents' prior attorney, it well may not have been reversible error had the District Court granted the motion; that possibility, however, need not be considered here.
In general, the question whether dismissal is appropriate should be left to the sound discretion of the district court. While the factors articulated in United States ex rel. Lujan v. Hughes Aircraft Co. appear to be appropriate, it is unnecessary to explore these and other relevant considerations. These standards can be discussed in the course of later cases.
IV
Petitioner and its amici place great emphasis on the reputational harm FCA defendants may suffer when the seal requirement is violated. But even if every seal violation does not mandate dismissal, that sanction remains a possible form of relief. District courts have inherent power, moreover, to impose sanctions short of dismissal for violations of court orders. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). Remedial tools like monetary penalties or attorney discipline remain available to punish and deter seal violations even when dismissal is not appropriate.
Of note in this case, petitioner did not request any sanction other than dismissal. Tr. of Oral Arg. 3-4, 17. Had petitioner sought some lesser sanctions, the District Court might have taken a different course. Yet petitioner failed to do so. On this record, the question whether a lesser sanction is warranted is not preserved.
The judgment of the Court of Appeals for the Fifth Circuit is
Affirmed.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer: |
songer_genapel2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Russell ALEXANDER, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
No. 71-3149.
United States Court of Appeals, Fifth Circuit.
Jan. 12, 1973.
Warren D. Rush, Lafayette, La., for petitioner-appellant.
Knowles M. Tucker, Dist. Atty., New Iberia, La., William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., for respondent-appellee.
Before WISDOM, GOLDBERG and CLARK, Circuit Judges.
BY THE COURT:
Petitioner’s appeal from a denial of habeas relief was denied by this Court on June 9, 1972, 459 F.2d 1391. On certiorari to the Supreme Court, our judgment was vacated “insofar as it leaves undisturbed the death penalty imposed” and the cause was remanded to this Court for further proceedings. Alexander v. Henderson, 409 U.S. 1032, 93 S.Ct. 538, 34 L.Ed.2d 482. See Stewart v. Massachusetts, 1972, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744.
In Furman v. Georgia, 1972, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and its companion cases, the Supreme Court held that the death penalty as imposed under the Georgia and Texas statutes constitutes cruel and unusual punishment in violation of the Eighth Amendment. Accordingly, we remand this case to the district court for reconsideration in light of Furman v. Georgia, supra. See Williams v. Henderson, 5 Cir. 1972, 465 F.2d 995; Newman v. Wainwright, 5 Cir. 1972, 464 F.2d 615.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_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.
In re PHILIP A. SINGER & BRO., Inc. (four cases).
Nos. 7313-7316.
Circuit Court of Appeals, Third Circuit.
June 11, 1940.
Rehearing Denied Oct. 18, 1940.
Abraham Alboum, of Newark, N. J., for appellants.
Robert F. Darby and Richard J. Congle-ton, both of Newark, N. J., for appellee.
Before BIGGS, CLARK, and BUF-FINGTON, Circuit Judges.
BIGGS, Circuit Judge.
Philip A. Singer & Bro., Inc., filed a petition for reorganization, pursuant to the provisions of Chapter 10 of the Bankruptcy Act, Act of July 1, 1898, c. 541, Sec. 101 et seq., as added June 22, 1938, c. 575, Sec. 1, 52 Stat. 883-905, 11 U.S.C.A. 501 et seq. The appellants are employees of that company who have filed claims for wages ba'sed upon an alleged agreement which arose under the following circumstances:, The debtor encountered financial difficulties. Singer, its president, gave orders to Fertell, its general manager and superintendent, to cut the salaries of all employees in half. Fertell ordered Villani, a foreman and one of the claimants-appellants, to inform the employees that it was necessary to cut their salaries. Villani so informed the employees, including the other claimants-appellants. Salaries accordingly were cut.
Disagreement arises by reason of the fact that it is not quite dear what Villani told the employees when he acted upon Fertell’s order. The appellants contend that Villani was the duly authorized agent of the debtor for dealing with its employees, that the agreement made by Villani with the employees on behalf of the debtor was that they were presently to receive one-half of their salaries but the remaining half was to be paid at a later date. Singer téstified that he told Fertell to tell the employees that their salaries would be cut in half and the other half would be paid only if business got better. Fertell testified that he gave this information to Villani with instructions to so inform the employees. Villani testified that, he told the employees that though their salaries would be cut in half, the remaining half would be paid at some future date, and that he omitted the qualification as to the improvement of the debtor’s business. The special master found that Singer was truthful when he testified as to what he had told Fertell. The appellants contend, however, that if Villani was the authorized agent of the debtor to arrange the pay cut, the debtor is bound by what Villani said and did.
If Singer’s testimony be accepted as the truth, it is apparent that Villani did not act within the scope of his authority in informing the employeés that the sums lost by the pay cut would be restored to them at a future date without referring to the condition that such restoration depended upon improvement in the debtor’s business. The issue alwáys remains one of fact, however, and in our opinion the trier of the facts was at liberty to disregard the whole or any part of Villani’s testimony and to find as he did, that Fertell himself told the appellants Caponigri, Tortoriello and Viola of the pay cut and the condition placed by Singer upon the restoration of the amounts cut. Upon the record we would conclude as did the special master that the salaries of the debtor’s employees were cut in half with a moral obligation upon the debtor’s part to restore such cuts if the future state of the business warranted it. The debtor’s business got worse instead of better; the debtor sought relief in a court of bankruptcy; and the moral obligation ceased to exist.
The order of the court below expunging the claims of the appellants is affirmed.
CLARK, Circuit Judge, took no part in the decision in this case.
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: |
sc_authoritydecision | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
KRAMER v. UNION FREE SCHOOL DISTRICT NO. 15 et al.
No. 258.
Argued January 16, 1969.—
Decided June 16, 1969.
Osmond K. Fraenkel argued the cause for appellant. With him on the brief were Melvin L. Wulj and Murray A. Miller.
John P. Jehu argued the cause and filed briefs for appellees. Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Daniel M. Cohen, Assistant Attorney General, filed a brief for appellee the Attorney General of New York.
Mr. Chief Justice Warren
delivered the opinion of the Court.
In this case we are called on to determine whether § 2012 of the New York Education Law is constitutional. The legislation provides that in certain New York school districts residents who are otherwise eligible to vote in state and federal elections may vote in the school district election only if they (1) own (or lease) taxable real property within the district, or (2) are parents (or have custody of) children enrolled in the local public schools. Appellant, a bachelor who neither owns nor leases taxable real property, filed suit in federal court claiming that § 2012 denied him equal protection of the laws in violation of the Fourteenth Amendment. With one judge dissenting, a three-judge District Court dismissed appellant’s complaint. Finding that § 2012 does violate the Equal Protection Clause of the Fourteenth Amendment, we reverse.
I.
New York law provides basically three methods of school board selection. In some large city districts, the school board is appointed by the mayor or city council. N. Y. Educ. Law § 2553, subds. 2, 4 (1953), as amended (Supp. 1968). On the other hand, in some cities, primarily those with less than 125,000 residents, the school board is elected at general or municipal elections in which all qualified city voters may participate. N. Y. Educ. Law §§ 2502, subd. 2, 2553, subd. 3 (1953). Cf. N. Y. Educ. Law § 2531 (1953). Finally, in other districts such as the one involved in this case, which are primarily rural and suburban, the school board is elected at an annual meeting of qualified school district voters.
The challenged statute is applicable only in the districts which hold annual meetings. To be eligible to vote at an annual district meeting, an otherwise qualified district resident must either (1) be the owner or lessee of taxable real property located in the district, (2) be the spouse of one who owns or leases qualifying property, or (3) be the parent or guardian of a child enrolled for a specified time during the preceding year in a local district school.
Although the New York State Department of Education has substantial responsibility for education in the State, the local school districts maintain significant control over the administration of local school district affairs. Generally, the board of education has the basic responsibility for local school operation, including prescribing the courses of study, determining the textbooks to be used, and even altering and equipping a former schoolhouse for use as a public library. N. Y. Educ. Law § 1709 (1953). Additionally, in districts selecting members of the board of education at annual meetings, the local voters also pass directly on other district matters. For example, they must approve the school budget submitted by the school board. N. Y. Educ. Law §§ 2021, 2022 (1953). Moreover, once the budget is approved, the governing body of the villages within the school district must raise the money which has been declared “necessary for teachers’ salaries and the ordinary contingent expenses [of the schools].” N. Y. Educ. Law § 1717 (1953). The voters also may “authorize such acts and vote such taxes as they shall deem expedient . . . for . . . equipping for library use any former schoolhouse . . . [and] for the purchase of land and buildings for agricultural, athletic, playground or social center purposes . . . .” N. Y. Educ. Law § 416 (1953).
Appellant is a 31-year-old college-educated stockbroker who lives in his parents’ home in the Union Free School District No. 15, a district to which § 2012 applies. He is a citizen of the United States and has voted in federal and state elections since 1959. However, since he has no children and neither owns nor leases taxable real property, appellant’s attempts to register for and vote in the local school district elections have been unsuccessful. After the school district rejected his 1965 application, appellant instituted the present class action challenging the constitutionality of the voter eligibility requirements.
The United States District Court for the Eastern District of New York denied appellant’s request (made pursuant to 28 U. S. C. § 2281) that a three-judge district court be convened, and granted appellees’ motion to dismiss appellant’s complaint. Kramer v. Union Free School District No. 15, 259 F. Supp. 164 (D. C. E. D. N. Y. 1966). On appeal, the Court of Appeals for the Second Circuit reversed, ruling appellant’s complaint warranted convening a three-judge court. Kramer v. Union Free School District No. 15, 379 F. 2d 491 (C. A. 2d Cir. 1967). On remand, the three-judge court ruled that § 2012 is constitutional and dismissed appellant’s complaint. 282 F. Supp. 70. Pursuant to 28 U. S. C. § 1253, appellant filed a direct appeal with this Court; we noted probable jurisdiction. 393 U. S. 818 (1968).
II.
At the outset, it is important to note what is not at issue in this case. The requirements of § 2012 that school district voters must (1) be citizens of the United States, (2) be bona fide residents of the school district, and (3) be at least 21 years of age are not challenged. Appellant agrees that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot. Cf. Carrington v. Rash, 380 U. S. 89, 91 (1965); Pope v. Williams, 193 U. S. 621 (1904). The sole issue in this case is whether the additional requirements of § 2012 — requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections — violate the Fourteenth Amendment’s command that no State shall deny persons equal protection of the laws.
“In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.” Williams v. Rhodes, 393 U. S. 23, 30 (1968). And, in this case, we must give the statute a close and exacting examination. “[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U. S. 533, 562 (1964). See Williams v. Rhodes, supra, at 31; Wesberry v. Sanders, 376 U. S. 1, 17 (1964). This careful examination is necessary because statutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.
Thus, state apportionment statutes, which may dilute the effectiveness of some citizens’ votes, receive close scrutiny from this Court. Reynolds v. Sims, supra. See Avery v. Midland County, 390 U. S. 474 (1968). No less rigid an examination is applicable to statutes denying the franchise to citizens who are otherwise qualified by residence and age. Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. See Carrington v. Rash, supra, at 96.
And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. Those decisions must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections. Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a “rational basis” for the distinctions made are not applicable. See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 670 (1966). The presumption of constitutionality and the approval given “rational” classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality. And, the assumption is no less under attack because the legislature which decides who may participate at the various levels of political choice is fairly elected. Legislation which delegates decision making to bodies elected by only a portion of those eligible to vote for the legislature can cause unfair representation. Such legislation can exclude a minority of voters from any voice in the decisions just as effectively as if the decisions were made by legislators the minority had no voice in selecting.
The need for exacting judicial scrutiny of statutes distributing the franchise is undiminished simply because, under a different statutory scheme, the offices subject to election might have been filled through appointment. States do have latitude in determining whether certain public officials shall be selected by election or chosen by appointment and whether various questions shall be submitted to the voters. In fact, we have held that where a county school board is an administrative, not legislative, body, its members need not be elected. Sailors v. Kent Bd. of Education, 387 U. S. 105, 108 (1967). However, “once the franchise is granted to the electorate, fines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections, supra, at 665.
Nor is the need for close judicial examination affected because the district meetings and the school board do not have “general” legislative powers. Our exacting examination is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not. For example, a city charter might well provide that the elected city council appoint a mayor who would have broad administrative powers. Assuming the council were elected consistent with the commands of the Equal Protection Clause, the delegation of power to the mayor would not call for this Court’s exacting review. On the other hand, if the city charter made the office of mayor subject to an election in which only some resident citizens were entitled to vote, there would be presented a situation calling for our close review.
III.
Besides appellant and others who similarly live in their parents’ homes, the statute also disenfranchises the following persons (unless they are parents or guardians of children enrolled in the district public school): senior citizens and others living with children or relatives; clergy, military personnel, and others who live on tax-exempt property; boarders and lodgers; parents who neither own nor lease qualifying property and whose children are too young to attend school; parents who neither own nor lease qualifying property and whose children attend private schools.
Appellant asserts that excluding him from participation in the district elections denies him equal protection of the laws. He contends that he and others of his class are substantially interested in and significantly affected by the school meeting decisions. All members of the community have an interest in the quality and structure of public education, appellant says, and he urges that “the decisions taken by local boards . . . may have grave consequences to the entire population.” Appellant also argues that the level of property taxation affects him, even though he does not own property, as property tax levels affect the price of goods and services in the community.
We turn therefore to question whether the exclusion is necessary to promote a compelling state interest. First, appellees argue that the State has a legitimate interest in limiting the franchise in school district elections to “members of the community of interest” — those “primarily interested in such elections.” Second, appel-lees urge that the State may reasonably and permissibly conclude that “property taxpayers” (including lessees of taxable property who share the tax burden through rent payments) and parents of the children enrolled in the district’s schools are those “primarily interested” in school affairs.
We do not understand appellees to argue that the State is attempting to limit the franchise to those “subjectively concerned” about school matters. Rather, they appear to argue that the State’s legitimate interest is in restricting a voice in school matters to those “directly affected” by such decisions. The State apparently reasons that since the schools are financed in part by local property taxes, persons whose out-of-pocket expenses are “directly” affected by property tax changes should be allowed to vote. Similarly, parents of children in school are thought to have a “direct” stake in school affairs and are given a vote.
Appellees argue that it is necessary to limit the franchise to those “primarily interested” in school affairs because “the ever increasing complexity of the many interacting phases of the school system and structure make it extremely difficult for the electorate fully to understand the whys and wherefores of the detailed operations of the school system.” Appellees say that many communications of school boards and school administrations are sent home to the parents through the district pupils and are “not broadcast to the general public”; thus, nonparents will be less informed than parents. Further, appellees argue, those who are assessed for local property taxes (either directly or indirectly through rent) will have enough of an interest “through the burden on their pocketbooks, to acquire such information as they may need.”
We need express no opinion as to whether the State in some circumstances might limit the exercise of the franchise to those “primarily interested” or “primarily affected.” Of course, we therefore do not reach the issue of whether these particular elections are of the type in which the franchise may be so limited. For, assuming, arguendo, that New York legitimately might limit the franchise in these school district elections to those “primarily interested in school affairs,” close scrutiny of the § 2012 classifications demonstrates that they do not accomplish this purpose with sufficient precision to justify denying appellant the franchise.
Whether classifications allegedly limiting the franchise to those resident citizens “primarily interested” deny those excluded equal protection of the laws depends, inter alia, on whether all those excluded are in fact substantially less interested or affected than those the statute includes. In other words, the classifications must be tailored so that the exclusion of appellant and members of his class is necessary to achieve the articulated state goal. Section 2012 does not meet the exacting standard of precision we require of statutes which selectively distribute the franchise. The classifications in § 2012 permit inclusion of many persons who have, at best, a remote and indirect interest in school affairs and, on the other hand, exclude others who have a distinct and direct interest in the school meeting decisions.
Nor do appellees offer any justification for the exclusion of seemingly interested and informed residents — other than to argue that the § 2012 classifications include those “whom the State could understandably deem to be the most intimately interested in actions taken by the school board/’ and urge that “the task of . . . balancing the interest of the community in the maintenance of orderly school district elections against the interest of any individual in voting in such elections should clearly remain with the Legislature.” But the issue is not whether the legislative judgments are rational. A more exacting standard obtains. The issue is whether the § 2012 requirements do in fact sufficiently further a compelling state interest to justify denying the franchise to appellant and members of his class. The requirements of § 2012 are not sufficiently tailored to limiting the franchise to those “primarily interested” in school affairs to justify the denial of the franchise to appellant and members of his class.
The judgment of the United States District Court for the Eastern District of New York is therefore reversed. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT.
Section 2012, New York Education Law:
“A person shall be entitled to vote at any school meeting for the election of school district officers, and upon all other matters which may be brought before such meeting, who is: 1. A citizen of the United States.
“2. Twenty-one years of age.
“3. A resident within the district for a period of thirty-days next preceding the meeting at which he offers to vote; and who in addition thereto possesses one of the following three qualifications:
“a. Owns or is the spouse of an owner, leases, hires, or is in the possession under a contract of purchase or is the spouse of one who leases, hires or is in possession under a contract of purchase of, real property in such district liable to taxation for school purposes, but the occupation of real property by a person as lodger or boarder shall not entitle such person to vote, or
“b. Is the parent of a child of school age, provided such a child shall have attended the district school in the district in which the meeting is held for a period of at least eight weeks during the year preceding such school meeting, or
“c. Not being the parent, has permanently residing with him a child of school age who shall have attended the district school for a period of at least eight weeks during the year preceding such meeting.
“No person shall be deemed to be ineligible to vote at any such meeting, by reason of sex, who has the other qualifications required by this section.”
In some districts the election takes place on the Wednesday-following the district meeting. N. Y. Educ. Law § 2013 (Supp. 1968).
The statute also requires that a voter be a citizen of the United States and at least 21 years of age. Appellant meets these requirements and does not challenge the citizenship, age, or residency requirements of §2012. See infra, at 625. The statute is set out in the Appendix, infra.
“But while the administration of schools and the formulation of general policies have been centralized in the State Education Department . . . the immediate control and operation of the schools in New York have to a large extent been vested in the localities. The thousands of districts . . . possess a high degree of authority in education. They decide matters of local taxation for school purposes, elect trustees and other school officials, purchase buildings and sites, employ teachers and . . . maintain discipline . . ..” Graves, Development of the Education Law in New York, 16 Consolidated Laws of New York (Education Law) xxiii (McKinney 1953). See R. Pyle, Some Aspects of Education in New York 9-13 (1967).
In districts which do not have annual meetings, the budget is not submitted to district voters. Thus, in city districts where the board of education is elected by all the voters, the board has the power to set the budget and assess taxes to meet expenditures. In large city districts, where the board is appointed, the board must submit requests to the city government, much as would any other city department. R. Pyle, Some Aspects of Education in New York 11 (1967).
The legislation provides that the money shall be raised through a “tax, to be levied upon all the real property in [the] village . . . .” And, the “corporate authorities shall have no power to withhold the sums so declared to be necessary . . . .” N. Y. Educ. Law §1717 (1953).
This case presents an issue different from the one we faced in McDonald v. Board of Election Comm’rs of Chicago, 394 U. S. 802 (1969). The present appeal involves an absolute denial of the franchise. In McDonald, on the other hand, we were reviewing a statute which made casting a ballot easier for some who were unable to come to the polls. As we noted, there was no evidence that the statute absolutely prohibited anyone from exercising the franchise; at issue was not a claimed right to vote but a claimed right to an absentee ballot. Id., at 807-808.
Of course, the effectiveness of any citizen’s voice in governmental affairs can be determined only in relationship to the power of other citizens’ votes. For example, if school board members are appointed by the mayor, the district residents may effect a change in the board’s membership or policies through their votes for the mayor. Cf. N. Y. Educ. Law § 2553, subds. 2, 4 (1953), as amended (Supp. 1968). Each resident’s formal influence is perhaps indirect, but it is equal to that of other residents. However, when the school board positions are filled by election and some otherwise qualified city electors are precluded from voting, the excluded residents, when compared to the franchised residents, no longer have an effective voice in school affairs. This is precisely the situation with regard to the size of the school budget in districts where § 2012 applies. See n. 4, supra.
See, e. g., McGowan v. Maryland, 366 U. S. 420, 425-428 (1961); Allied Stores v. Bowers, 358 U. S. 522, 527 (1959); Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 556 (1947).
Of course, we have long held that if the basis of classification is inherently suspect, such as race, the statute must be subjected to an exacting scrutiny, regardless of the subject matter of the legislation. See, e. g., McLaughlin v. Florida, 379 U. S. 184, 192 (1964); Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 420 (1948); Oyama v. California, 332 U. S. 633, 640 (1948).
Thus, statutes structuring local government units receive no less exacting an examination merely because the state legislature is fairly elected. See Avery v. Midland County, 390 U. S. 474, 481, n. 6 (1968).
Similarly, no less a showing of a compelling justification for disenfranchising residents is required merely because the questions scheduled for the election need not have been submitted to the voters.
In Sailors v. Kent Bd. of Education, 387 U. S. 105 (1967), each local school board sent one delegate to a biennial meeting at which the members of the county board of education were selected. We noted that “the choice of members of the county school board did not involve an election.” Id., at 111. However, we also pointed out that the members of the local school boards, who in effect made the county board appointments, were elected, but that “no constitutional complaint [was] raised respecting that election.” Ibid.
The Union Free School District No. 15 and each member of its board of education were named as defendants. The Attorney General of New York intervened as an appellee.
Of course, if the exclusions are necessary to promote the articulated state interest, we must then determine whether the interest promoted by limiting the franchise constitutes a compelling state interest. We do not reach that issue in this case.
For example, appellant resides with his parents in the school district, pays state and federal taxes and is interested in and affected by school board decisions; however, he has no vote. On the other hand, an uninterested unemployed young man who pays no state or federal taxes, but who rents an apartment in the district, can participate in the election.
We were informed at oral argument, however, that a very small proportion of the eligible voters attend the meetings.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer: |
songer_othcrim | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Robert Lynn SMITH, Appellant, v. UNITED STATES of America, Appellee.
No. 18940.
United States Court of Appeals Eighth Circuit.
Nov. 1, 1967.
James A. Cochrane, Jr., Finch, Finch, Knehans & Cochrane, Cape Girardeau, Mo., filed typewritten application to withdraw as counsel in this case.'
No response to such application was filed by counsel for the government.
Before MATTHES and LAY, Circuit Judges.
PER CURIAM.
This matter comes before this court on application for leave to withdraw as counsel. Appellant's trial counsel has been appointed by this court to represent him in his appeal from a conviction under Title 50, App. U.S.C.A. § 462, while wilfully and knowingly failing and neglecting to report to his draft board pursuant to the order of his board. Counsel has filed a short statement of facts and states that he has “reluctantly concluded that there is no genuine issue or legal point which can be raised upon this appeal.” Counsel has filed with the court cases which he argues conclusively show that the evidence in the case was solely one of fact below and that there is no arguable point or issue in the record to support the appeal. Counsel informs the court that the appellant would like to have as much time as possible to submit on his own behalf points he feels should be considered by the court.
We feel this matter is controlled by Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 2d 811 (1963). As Mr. Justice Clark stated in Anders:
“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curise. The no-merit letter and the procedure it triggers does not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.”
It is apparent that counsel has made a good faith and conscientious examination of the record and it is upon this examination that he seeks permission to withdraw. However, we feel that the permission to withdraw from a direct appeal must be accompanied with a brief referring to anything in the record that might be argued on appeal, as well as a statement from counsel or the appellant as to the points the indigent chooses to raise upon appeal. Only under those circumstances can the court decide whether the case is frivolous.
The present application is of little help to either the court or the client. The cause of advocacy is not served to read a brief filed by appellant’s own counsel asserting the government’s position in the case. See Harders v. State of California, 373 F.2d 839 (9 Cir. 1967); Camodeo v. United States, 387 U.S. 575, 87 S.Ct. 2070, 18 L.Ed.2d 966.
We are of the opinion that under the present status of the record appellant is entitled to counsel upon appeal and it would be of lesser value to appoint other counsel. Application for leave to withdraw is denied.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Frank R. JACKLOVICH, as well for the United States of America as for himself, Plaintiff-Appellant, v. INTERLAKE, INC., Defendant-Appellee.
No. 71-1382.
United States Court of Appeals, Seventh Circuit.
April 4, 1972.
Marshall Patner, Alexander Polikoff, Thomas R. Meites, Chicago, Ill., Sheldon Plager, Champaign, Ill., for plaintiff-appellant.
Henry L. Pitts, W. Gerald Thursby, Clifton A. Lake, Chicago, Ill., for defendant-appellee; Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., of counsel.
Before KILEY, CUMMINGS and SPRECHER, Circuit Judges.
CUMMINGS, Circuit Judge.
In this qui tam action, plaintiff sued “as well for the United States of America as for himself” under Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §§ 407 and 411-412). He alleged that in May 1969 defendant Interlake, Inc. was found guilty of discharging and depositing refuse matter from its Riverdale, Illinois, steel mill into the Little Calumet River during June 1968. That conviction occurred in a suit brought by the United States Attorney for the Northern District of Illinois on the basis of information provided by plaintiff and resulted in a fine, one-half of which was paid to plaintiff pursuant to Section 16 of the Act. See United States v. Interlake Steel Corp., 297 F.Supp. 912 (N.D.Ill.1969).
The complaint asserts that plaintiff observed 26 subsequent instances of discharge into the river by defendant from June 1969 through October 1970. Plaintiff purportedly gave the bulk of this information to the United States Attorney for the Northern District of Illinois and to the Department of the Army, but the Government instituted no further proceedings against Interlake under this Act. Pursuant to the first sentence of Section 16 of the 1899 Act (33 U.S.C.A. § 411), he requested the district court to require Interlake to pay a fine not exceeding $2,500 nor less than $500 for each of these 26 violations, one-half to the United States and one-half to plaintiff, who commendably agreed to pay his net recovery to not-for-profit organizations “for use in the prevention of water pollution or the restoration of water quality in navigable waters of the United States.”
Expressly following Bass Anglers Sportsman’s Society v. United States Plywood-Champion Papers, 324 F.Supp. 302 (S.D.Tex.1971), the district court granted defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, holding that the relevant part of Section 16 of the Act is a criminal statute and does not authorize the bringing of a qui tam action. This appeal followed.
The sole question before us is whether the first sentence of Section 16 of the Rivers and Harbors Act of 1899 authorizes a qui tam action. It provides as follows:
“Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act], shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” (33 U.S.C.A. § 411)
Section 17 of the Act provides in part:
“The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 [and] * * * 411 * * * of this title [Sections 13 and 16 of the Act]; and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * *." (33 U.S.C.A. § 413)
An examination of the above portion of Section 16 readily discloses that it is a criminal provision. Persons guilty of violating Section 13 (see note 2 supra) are made guilty of a misdemeanor, resulting in a fine or imprisonment, or both. There must be a criminal conviction before half of the criminal penalty is to be paid to the informer. No qui tam action is authorized. This interpretation is buttressed by Section 17, for it places the enforcement powers as to Sections 13 and 16 in the hands of the Department of Justice, with offenders to be prosecuted by the appropriate United States Attorneys. In the present ease, for reasons undisclosed in the record, the United States Attorney for the Northern District of Illinois has not seen fit to prosecute Interlake for the 26 instances of discharge described in this complaint, and he cannot be compelled to initiate another criminal action against Interlake. United States v. Jones, 438 F.2d 461, 468 (7th Cir. 1971); United States v. Cox, 342 F.2d 167, 171-172 (5th Cir.) (en banc), certiorari denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Pugach v. Klein, 193 F.Supp. 630, 634-635 (S.D.N.Y.1961). Since the informer’s right to recover half the fine depends on a conviction in proceedings brought by the Government, plaintiff is remediless here. Two Courts of Appeals and twelve district courts that have considered the problem have unanimously so held.
Plaintiff attempts to avoid this result by reliance upon the last portion of Section 16 of the Act. That portion makes it a misdemeanor for masters, pilots, engineers, and other persons acting as such to engage in substantive violations of the statute. It then provides:
“Any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act] shall be liable for the pecuniary penalties specified in section 411 of this title [the first part of Section 16 of the Act], and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof”. (33 U.S.C.A. § 412; emphasis supplied)
Plaintiff claims that the phrase “pecuniary penalties specified” in this part of Section 16 of the Act means that civil penalties may be assessed under the previous criminal fine language of Section 16. We do not accept this strained construction in view of the plain language to the contrary in the earlier part of Section 16. Moreover, the underscored language was obviously used to limit the in rem liability against any vessel used in violation of the Act to a maximum of $2,500 and minimum of $500, as provided in the first sentence of Section 16. United States v. The Republic No. 2, 64 F.Supp. 373, 377 (S.D.Tex.1946); and United States v. The M/V Martin, 198 F.Supp. 171, 176 (S.D.Ill.1961), affirmed, 313 F.2d 851 (7th Cir. 1963), are not to the contrary because those were both in rem actions brought by the United States. We believe their references to “the pecuniary penalties specified” in Section 16 were merely to show the measure of the in rem liability under the last part of Section 16, in accord with the statutory scheme as it clearly appears. Simply put, the availability of an in rem action with liability in part measured by criminal penalties prescribed in the preceding portion of the statute does not imply the availability of a civil remedy under the preceding portion. On the contrary, the difference in the types of proceedings provided for in distinct provisions of the statute emphasizes the criminal character of that afforded in the first sentence of Section 16. See Helvering v. Mitchell, 303 U.S. 391, 404, 58 S.Ct. 630, 82 L.Ed. 917.
Plaintiff also contends that the first sentence of Section 16 authorizes a civil action for monetary penalties because the Government has brought civil actions to enjoin violations of other provisions of the Act. However, plaintiff has cited no ease in which the Government has proceeded civilly under the first sentence of Section 16, which provides that the mode of recovery of the penalties imposed thereunder is by a criminal action. Merely because other provisions of the Act may be enforced by civil injunctive action does not mean that plaintiff can recover monetary penalties under the opening sentence of Section 16 by way of a qui tarn action. Moreover, while civil remedies for violations of penal statutes are sometimes implied in favor of those whose special protection is the statutory purpose, the bare fact that Section 16 of the Act affords a portion of the criminal penalty assessed upon conviction to an informer is an insufficient basis on which to deprive alleged violators of the procedural protections attendant upon a criminal prosecution. Cf. Helvering v. Mitchell, 303 U.S. 391, 402-403, 58 S.Ct. 630, 82 L.Ed. 917. What the appellant seeks to accomplish here is not collateral civil enforcement of a standard of conduct prescribed in a penal statute especially for his benefit, but recovery of the criminal penalty without the necessity of the criminal prosecution the statute clearly requires.
Plaintiff relies on Adams v. Woods, 6 U.S. 336, 2 Cranch. 336, 2 L.Ed. 297, but the anti-slave trade statute involved there specifically provided for the informer. to sue for the fine, as did the Ohio anti-gambling statute in Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157. Likewise, in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, the statute permitted informer suits to “be brought and carried on by any person.” See 317 U.S. at 546, 63 S.Ct. at 385. Although the Government presented strong policy arguments against the informer’s scheme involved in the Marcus case, the Court held that in view of the clear statutory policy there permitting informer suits, the proper forum for change was Congress (317 U.S. at 546-547, 63 S.Ct. 379), and shortly thereafter Congress accepted the challenge by repealing R.S. 3493 and revising R.S. 3491. It should be noted too that in Marcus the penalty involved was civil in nature, whereas the pertinent part of Section 16 of this Act requires a criminal conviction before an informer may share in the penalty. 317 U.S. at 549-552, 63 S.Ct. 379.
Our holding that only the United States may bring and prosecute an action to impose the penalty described by the Rivers and Harbors Act is reinforced by the Eighth Circuit’s opinion in Williams v. Wells Fargo Co., Express, 177 F. 352, 354-356 (8th Cir. 1910). There a postal statute provided that one-half of the penalties and forfeitures imposed for violation of the postal laws should be recoverable “to the use of the person' informing and prosecuting for the same.” The court stated that such language (which is much broader than the key part of Section 16 of the Rivers and Harbors Act) standing alone would impliedly authorize an informer to bring a qui tam action. Nevertheless, the court held that a qui tam suit was prohibited because another section of the postal laws required that all suits for recovery of penalties or forfeitures thereunder “shall be brought in the name of the United States.” Similarly here, Section 17 of this Act commits the enforcement of Sections 13 and 16 of the Rivers and Harbors Act to the Department of Justice, thus also prohibiting qui tam actions by informers.
While we share the public’s growing concern with pollution of public waters, the present design of the 1899 Rivers and Harbors Act does not permit qui tam actions to recover penalties for the discharge of refuse matter into navigable streams. Congress is the proper forum for amending the statute to permit such actions.
Affirmed.
. The phrase “qui tam” is derived from the common law action, “qui tam pro domino rege quam pro se ipso in hac parte sequitur” — who as well for the king as for himself sues in this matter.
. Section 13 of the Act makes it unlawful to discharge or deposit refuse matter from a manufacturing establishment into navigable waters of the United States. The most pertinent part of Section 16 is reproduced infra, early in the text of this opinion.
. The court below did not file an opinion because it would not “add anything to what has already been written.”
. Roscoe Pound’s statement that an informer may sue in his own name “where a penalty is given to him in whole or in part for that reason alone” is not to the contrary, for he was not discussing a criminal statute which is expressly to be enforced by the Department of Justice. See Pound, Actions on Penal Statutes, 42 Central Law Journal 135 (1908).
Plaintiff also relies on 28 U.S.C.A. § 2461(a) which permits civil actions to recover “a civil fine, penalty or pecuniary forfeiture * * * prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof." (Emphasis supplied.) However, as seen, in Section 17 of the 1899 Act, Congress has explicitly provided for the Department of Justice to enforce Sections 13 and 16 of that Act, so that Section 2461(a) does not authorize the criminal fine specified in the first part of Section 16 to be recovered in a civil action.
. According to its regulations, the Corps of Engineers of the Department of the Army does not take action (see 33 U.S.C.A. § 413) where violations are “minor, unintentional or accidental” and generally does not recommend prosecution (see Id.) where an alleged violation is “trivial, apparently, unpremeditated and results in no material public injury,” but only “in all cases of willful or intentional violations.” 33 C.F.R. §§ 209.395 and 209.400. See United States v. Interlake Steel Corp., 297 F.Supp. 912, 915 (N.D.Ill.1969).
. Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81 (2d Cir., 1972); Bass Anglers Sportsman’s Soc’y v. Koppers Co., 447 F.2d 1304 (5th Cir. 1971) (per curiam), affirming, 324 F.Supp. 412 (S.D.M.D. & N.D.Ala.1971; joint opinion of three district judges); Gerbing v. ITT-Rayonier, Inc., 332. F.Supp. 309 (M.D.Fla.1971); Mitchell v. Tenneco Chemicals, Inc., 331 F.Supp. 1031 (D.S.C.1971); Lavagnino v. Porto-Mix Concrete, Inc., 330 F.Supp. 323 (D.Colo.1971); Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 330 F.Supp. 695 (D.Conn.1971); Bass Anglers Sportsman’s Soc’y v. Scholze Tannery, 329 F.Supp. 339 (E.D.Tenn.1971); United States ex rel. Mattson v. Northwest Paper Co., 327 F.Supp. 87 (D.Minn.1971); Enquist v. Quaker Oats Co., 327 F.Supp. 347 (D.Neb.1971); United States v. Florida-Vanderbilt Development Corp., 326 F.Supp. 289 (S.D.Fla.1971); Durning v. ITT-Rayonier, Inc., 325 F.Supp. 446 (W.D.Wash.1970); Bass Anglers Sportsman’s Soc’y v. United States Plywood-Champion Papers, Inc., 324 F.Supp. 302 (S.D.Tex.1971); Reuss v. Moss-America, Inc., 323 F.Supp. 848 (E.D.Wis.1971).
. See, e. g., United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed. 2d 908, United States v. Florida Light and Power Co., 311 F.Supp. 1391 (S.D.Fla.1970).
. See 31 U.S.C.A. § 232 and 31 U.S.C.A. § 234 Historical Note.
. See also Allen v. Craig, 102 Or. 254, 201 P. 1079 (1921); People ex rel. Wegner v. Hartford Life Ins. Co., 186 Ill.App. 117 (1914); State ex rel. Rodes v. Warner, 197 Mo. 650, 94 S.W. 962 (1906); and Omaha & R. V. Ry. v. Hale, 45 Neb. 418, 63 N.W. 849 (1895). Contrary eases relied upon by plaintiff involve such different statutory language as to be unpersuasive. Since it is clear that qui tam actions are not permitted under this particular statutory language, it is unnecessary to consider the English common law history and precedents.
. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 547, 63 S.Ct. 379, 87 L.Ed. 443. Plaintiff relies on footnote 4 of the Marcus opinion which states in part as follows:
“Statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue, Adams v. Woods [6 U.S. 336], 2 Cranch. 336 [2 L.Ed. 297].”
As seen, the statute in Adams specifically authorized the informer to sue to recover half the fíne. Here Section 17 of the Act forbids the informer to sue because the enforcement powers are committed to the Department of Justice, and the critical part of Section 16 itself provides only for criminal proceedings.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
sc_threejudgefdc | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. WRIGHT et al.
No. 70-161.
Argued January 13, 1972
Decided Febrary 24, 1972
Assistant Attorney General Gray argued the cause for appellant in No. 70-151 and for appellee in No. 70-5211. With him on the briefs were Solicitor General Griswold, Kathryn H. Baldwin, Wilmot R. Hastings, Edwin H. Yourman, and Paul Merlin.
Robert N. Sayler argued the cause and filed briefs for appellees in No. 70-161 and for appellants in No. 70-5211.
Briefs of amici curiae in both cases were filed by Thomas L. Fike for the Legal Aid Society of Alameda County; by David H. Marlin and Jonathan A. Weiss for the National Council of Senior Citizens; and by Albert C. Neimeth for Luella H. Mills et al. Bernard P. Becker and Harvey N. Schmidt filed a brief for Stella Van Guilder et al. as amici curiae.
Together with No. 70-5211, Wright et al. v. Richardson, Secretary of Health, Education, and Welfare, also on appeal from the same court.
Per Curiam.
We noted probable jurisdiction of these appeals, 404 U. S. 819 (1971), to consider the applicability of Gold berg v. Kelly, 397 U. S. 254 (1970), to the suspension and termination of disability benefit payments pursuant to § 225 of the Social Security Act, 70 Stat. 817, 42 U. S. C. § 425, and implementing regulations of the Department of Health, Education, and Welfare. Shortly before oral argument, we were advised that the Secretary had adopted new regulations, effective December 27, 1971, governing the procedures to be followed by the Social Security Administration in determining whether to suspend or terminate disability benefits. These procedures include the requirement that a recipient of benefits be given notice of a proposed suspension and the reasons therefor, plus an opportunity to submit rebuttal evidence. In light of that development, we believe that the appropriate course is to withhold judicial action pending reprocessing, under the new regulations, of the determinations here in dispute. If that process results in a determination of entitlement to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation. In the context of a comprehensive complex administrative program, the administrative process must have a reasonable opportunity to evolve procedures to meet needs as they arise. Accordingly, we vacate the judgment of the District Court for the District of Columbia, 321 F. Supp. 383 (1971), with direction to that court to remand the cause to the Secretary and to retain jurisdiction for such further proceedings, if any, as may be necessary upon completion of the administrative procedure.
Vacated and remanded.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer: |
songer_casetyp1_1-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
Jimmy Seth PERRY, Petitioner, v. Dr. Stanley BLACKLEDGE, Warden, Central Prison, Raleigh, North Carolina, and State of North Carolina, Respondents.
No. 71-2198.
United States Court of Appeals, Fourth Circuit.
Dec. 27, 1971.
Jimmy Seth Perry, pro se.
Jacob L. Safron, Asst. Atty. Gen. of N. C., Raleigh, N. C., for respondents.
Before SOBELOFF and BRYAN, Senior Circuit Judges, and WINTER, Circuit Judge.
SOBELOFF, Senior Circuit Judge:
Petitioner here seeks review of the District Court’s dismissal of his habeas corpus petition, brought under 28 U.S.C. § 2254, for failure to exhaust state remedies.
In 1969, Perry was brought to trial in the District Court for Northampton County on a misdemeanor charge — assaulting a fellow inmate at the Odem Farm Unit of the North Carolina Department of Corrections. Upon being convicted, petitioner was sentenced to six months, sentence to run consecutively to the sentence he was then serving.
Due to the consecutive nature of the sentence imposed, petitioner appealed his conviction to the Northampton Superior Court where, in accordance with North Carolina law, his earlier conviction and sentence were nullified and he was tried de novo. N. C. Gen. Stat. §§ 7A-290, 15-177.1 (1969). This time, for the same acts underlying the misdemeanor conviction, Perry was charged with the felony of assault with a deadly weapon. Petitioner pleaded guilty and received a sentence of from five to seven years. This sentence was the same length as one that the petitioner was already serving and was imposed concurrently with the preexisting sentence.
Perry now seeks federal habeas corpus, claiming that his constitutional rights were violated when, because he appealed from his misdemeanor conviction, he was subjected to a more severe sentence. See Rice v. North Carolina, 434 F.2d 297 (4th Cir. 1970), cert, granted, North Carolina v. Rice, 401 U.S. 1008, 91 S.Ct. 1256, 28 L.Ed.2d 544 (1971). Admittedly, petitioner has never presented his claim to the North Carolina state courts and, ordinarily, this fact alone would justify the denial of federal habeas corpus relief. Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967); Whitley v. North Carolina, 357 F.2d 75 (4th Cir. 1966).
However, the requirement that a state prisoner seeking federal post conviction relief must first exhaust his state remedies will not bar federal relief where resort to the state courts is but a futile exercise. 28 U.S.C. § 2254(b); Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), cert, denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871. This circuit has several times recognized that such futility exists where there are decisions of the highest state court directly against the claim of the petitioner and there appears no indication that the state court is inclined to change its position. Ralph v. Warden, 438 F.2d 786, n. 1 at 788 (4th Cir. 1970); Evans v. Cunningham, 335 F.2d 491, 493 (4th Cir. 1964).
In this case, the highest court of the State of North Carolina has, in the past year, spoken twice in unequivocal rejection of precisely the claim petitioner seeks to raise here. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897, 901-903 (1970); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765, 770-773 (1970). The requirement of state remedy exhaustion does not compel petitioner to go through the empty formality of offering the Supreme Court of North Carolina an opportunity to reaffirm its already clearly established doctrine.
In view of the foregoing, we hold that the District Court erred when it granted respondent’s motion to dismiss Perry’s petition for failure- to exhaust state remedies. Accordingly, leave to proceed in forma pauperis is granted, a certificate of probable cause to appeal is granted, the judgment of the District Court is vacated and the case is remanded for further consideration of petitioner’s claim upon its merits. Inasmuch as the Supreme Court of the United States has heard argument in North Carolina v. Rice upon the same question as the petitioner raises in this case, the District Court is instructed to defer action until the Supreme Court has decided Rice.
Reversed and remanded.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer: |
songer_r_bus | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John M. JORDAN, Plaintiff, and Federal Energy Regulatory Commission, Appellant, v. RANDOLPH MILLS, INC., Appellee. In re RANDOLPH MILLS, INC., Debtor. John M. JORDAN, Appellant, and Federal Energy Regulatory Commission, Intervenor, v. RANDOLPH MILLS, INC., Appellee. In re RANDOLPH MILLS, INC., Debtor.
Nos. 83-1359, 83-1360.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1983.
Decided Sept. 6, 1983.
Wiley P. Wooten, Burlington, N.C. (Jeffrey A. Andrews, Vernon, Vernon, Wooten, Brown & Andrews, P.A., Burlington, N.C., on brief), Joshua Z. Rokach, Washington, D.C. (Stephen R. Melton, Acting Gen. Counsel, Jerome M. Feit, Sol. Federal Energy Regulatory Commission, Washington, D.C., on brief) and Lee M. Goodwin, Washington, D.C. (Goodwin & Schwartzstein, Washington, D.C., on brief), for appellants.
R. Bradford Leggett, Winston-Salem, N.C. (Allman, Spry, Humphreys & Armentrout, Winston-Salem, N.C., on brief), for appellee.
Before PHILLIPS and SPROUSE, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
HAYNSWORTH, Senior Circuit Judge:
An applicant for a license from the Federal Energy Regulatory Commission to produce electric power by utilizing an abandoned dam on property of a bankrupt debt- or in possession was held to have been in violation of a broad restraining order, issued by the bankruptcy court against interference with the debtor’s possession and enjoyment of its property. The bankruptcy court held John Jordan, who had filed the application on behalf of his employer, in contempt, and that finding was affirmed by the district court. 29 B.R. 398. We granted a stay of the order, which imposed substantial sanctions upon Jordan for delay in withdrawing the pending application.
We reverse because the filing and processing of the application was not a violation of the restraining order.
I.
The debtor, Randolph Mills, Inc., is the owner of a tract of land on which there are two abandoned dams. The dam sites are unrelated to any business of Randolph Mills.
In 1979, Randolph Mills sought reorganization under Chapter XI of the Bankruptcy Act of 1898. Since then it has been a debtor in possession operating under the control and jurisdiction of the United States Bankruptcy Court of the Middle District of North Carolina. On July 13, 1979, that court had entered a restraining order to protect the debtor and its property from legal proceedings and process, and from interference in any other way with the possession or management by the debtor of its property or with the jurisdiction of the bankruptcy court.
John Jordan, vice president of Sellers Manufacturing Co., Inc., was interested in the hydroelectric power potential of the two dams. Pursuant to Federal Energy Regulatory Commission Rules, Practice and Procedure, 18 C.F.R. § 4.80, et seq., in April 1980 Jordan filed on behalf of Sellers Manufacturing applications for preliminary permits which would enable Sellers to study and appraise the potential of the two dams for the production of electric power. Randolph Mills responded, when it learned of the pendency of those applications, by informing the Federal Energy Regulatory Commission of the terms of the July 13, 1979 restraining order. Nevertheless, on November 18, 1980, FERC issued to Sellers Manufacturing preliminary permits for study of the potential of the two dams.
Almost a year later, on November 2,1981, Jordan filed applications for licenses to operate the two dams.
While those applications were pending, William H. Lee made an offer to Randolph Mills to purchase the upper dam with certain adjacent land and electric equipment for $170,000. The offer, however, was conditional. It was good only if there were no outstanding FERC permits or licenses and no pending application for any such permits or licenses. Though the application of Sellers Manufacturing for a license to operate that dam was then pending, the debtor sought approval of the bankruptcy court of a sale to Lee. That approval was granted, though his conditional offer was unenforceable.
Contempt proceedings were then initiated in the bankruptcy court by an order to Jordan to show cause why he should not be held in contempt for filing and prosecuting the Sellers application for a license. The bankruptcy judge held Jordan in contempt. On appeal to the district court, the FERC intervened, with the permission of the district judge, but the finding of contempt was upheld, and the district court imposed substantial sanctions upon Jordan in the event that he did not effectively withdraw the pending Sellers application before 5 o’clock p.m. on April 25, 1983. We granted a stay, and heard the case upon an expedited briefing schedule.
II.
This dam is within the regulatory jurisdiction of the FERC. The owner has no right to develop or maintain it for the generation of electric power, except to the extent it may be granted a license by the FERC to do so. See Federal Power Commission v. Union Electric Co., 381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965); United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940). Whatever other rights Randolph Mills may have as a riparian landowner, it has no right to reconvert or use this dam for the production of electric power, and it cannot authorize another to do so. Only the FERC can do that.
The United States may develop and operate hydroelectric projects, and it may license others to do so. A license which it grants to another, however, authorizes the licensee to do no more than the United States itself could do. It neither transfers nor diminishes any right of possession or enjoyment possessed by the riparian owner. If the licensee is not the owner, the owner may exclude the licensee from the land. The licensee can exercise the privilege granted by the United States only if he acquires from the owner the right to use the land and facilities necessary for operation of the project. See Federal Power Commission v. Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686 (1954).
If the owner and non-owner licensee cannot agree upon a fair price for the land and structures the licensee wishes to use, the licensee may employ the right of eminent domain he obtained with his license. 16 U.S.C.A. § 814. The existence of that right, however, is not a new burden upon the landowner. It existed in the United States before the license issued. Issuance of the license simply transferred that right from the United States to the licensee. In short, the pendency of the application had no effect upon the owner’s use and enjoyment of the land.
With so much, the district judge seems to have been in agreement. The Deep River in which the dams are located is a navigable stream, and the district court recognized the plenary power of the United States to license and regulate the operation of hydroelectric projects in it. It concluded, however, that the pendency of the license application impaired the marketability of the debtor’s property, and, since it frustrated consummation of the sale to Lee, it interfered with the conclusion of the Chapter XI proceedings. We, however, cannot accept that reasoning.
The highest and best use of the land is for a hydroelectric project. For agricultural purposes, the value of the land would be nothing like as much as the $170,000 offered by Lee, and no other more profitable use is suggested in the record. If the owner was to realize the full potential of the land, therefore, it should have sought a license for itself, a step it did consider, or begun negotiations with Jordan. At the time Lee made his offer, there was no other potential purchaser on the scene, and Lee’s offer was quite illusory, because satisfaction of the condition would require withdrawal of Jordan’s application. Jordan had a- clear right to process his application for the license, and the debtor had no right to require him to desist.
What is involved here is not a hindrance of the debtor in disposing of property it does not need. Essentially it is a contest between Sellers Manufacturing and Lee. Each wishes to develop the hydroelectric project. To open the way for Lee, the bankruptcy judge went so far as to require not only that Jordan withdraw his application but that his current application not be treated by the FERC, in the event of any subsequent application, as giving Sellers Manufacturing any priority. The district judge recognized that the bankruptcy judge had no power to control the FERC’s interpretation and application of its own rules and practices, but Lee’s strategem clearly had as its purpose Lee’s becoming the licensee.
The only apparent hindrance attributable to Jordan’s filing and processing the application can be said to lie in the fact that he did not sooner come forward with a purchase offer himself. There is no requirement, of course, that he purchase the property before obtaining assurance that he would be the licensee. After the district court’s order, however, Sellers Manufacturing did come forward with an offer to buy the same property Lee sought to acquire for $175,000. That offer was conditioned upon acceptance before termination of this appeal, but it is a dramatic illustration of the fact that the debtor could have had its money had it not steadfastly preferred to deal with Lee as to the upper dam.
If the pendency of the license application had any effect upon the debtor’s property or the completion of the Chapter XI proceedings, it is entirely indirect and collateral. The debtor’s property rights have not been diminished, and the debtor is still in the position that, if it wishes to realize the potential value of its property, it must deal with one licensed by the FERC or one in a position to obtain such a license. Jordan had invested substantial sums in engineering studies of the potential of the two dam projects, and the bankruptcy court had no right to require that Sellers Manufacturing step aside and make way for Lee.
We conclude that the finding that Jordan had violated the injunctive decree of July 13, 1979 was erroneous, and the order holding him in contempt must be vacated.
VACATED AND REMANDED.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
sc_certreason | G | 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.
AMERICOLD REALTY TRUST, Petitioner
v.
CONAGRA FOODS, INC., et al.
No. 14-1382.
Supreme Court of the United States
Argued Jan. 19, 2016.
Decided March 7, 2016.
Michael D. Pospisil, Kansas City, MO, for Petitioner.
John M. Duggan, Overland Park, KS, for Respondents.
John M. Duggan, Deron A. Anliker, Duggan Shadwick Doerr & Kurlbaum LLC, Overland Park, KS, for Respondents.
Kristin Linsley Myles, Joshua Patashnik, Munger, Tolles & Olson LLP, San Francisco, CA, Michael D. Pospisil, John M. Edgar, Edgar Law Firm LLC, Kansas City, MO, for Petitioner.
Justice SOTOMAYOR delivered the opinion of the Court.
Federal law permits federal courts to resolve certain nonfederal controversies between "citizens" of different States. This rule is easy enough to apply to humans, but can become metaphysical when applied to legal entities. This case asks how to determine the citizenship of a "real estate investment trust," an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members.
I
This action began as a typical state-law controversy, one involving a contract dispute and an underground food-storage warehouse fire. A group of corporations whose food perished in that 1991 fire continues to seek compensation from the warehouse's owner, now known as Americold Realty Trust. After the corporations filed their latest suit in Kansas court, Americold removed the suit to the Federal District Court for the District of Kansas. The District Court accepted jurisdiction and resolved the dispute in favor of Americold.
On appeal, however, the Tenth Circuit asked for supplemental briefing on whether the District Court's exercise of jurisdiction was appropriate. The parties responded that the District Court possessed jurisdiction because the suit involved "citizens of different States." 28 U.S.C. §§ 1332(a)(1), 1441(b).
The Tenth Circuit disagreed. The court considered the corporate plaintiffs citizens of the States where they were chartered and had their principal places of business: Delaware, Nebraska, and Illinois. See ConAgra Foods, Inc. v. Americold Logistics, LLC, 776 F.3d 1175, 1182 (2015) ; § 1332(c)(1) (specifying the citizenship of corporations for jurisdictional purposes). The court applied a different test to determine Americold's citizenship because Americold is a "real estate investment trust," not a corporation. Distilling this Court's precedent, the Tenth Circuit reasoned that the citizenship of any "non-corporate artificial entity" is determined by considering all of the entity's "members," which include, at minimum, its shareholders. Id., at 1180-1181 (citing Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990) ). As there was no record of the citizenship of Americold's shareholders, the court concluded that the parties failed to demonstrate that the plaintiffs were "citizens of different States" than the defendants. See Strawbridge v. Curtiss, 3 Cranch 267, 2 L.Ed. 435 (1806).
We granted certiorari to resolve confusion among the Courts of Appeals regarding the citizenship of unincorporated entities. 576 U.S. ----, 136 S.Ct. 27, 192 L.Ed.2d 997 (2015). We now affirm.
II
Exercising its powers under Article III, the First Congress granted federal courts jurisdiction over controversies between a "citizen" of one State and "a citizen of another State." 1 Stat. 78. For a long time, however, Congress failed to explain how to determine the citizenship of a nonbreathing entity like a business association. In the early 19th century, this Court took that silence literally, ruling that only a human could be a citizen for jurisdictional purposes. Bank of United States v. Deveaux, 5 Cranch 61, 86-91, 3 L.Ed. 38 (1809). If a "mere legal entity" like a corporation were sued, the relevant citizens were its "members," or the "real persons who come into court" in the entity's name. Id., at 86, 91.
This Court later carved a limited exception for corporations, holding that a corporation itself could be considered a citizen of its State of incorporation. See Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844). Congress etched this exception into the U.S. Code, adding that a corporation should also be considered a citizen of the State where it has its principal place of business. 28 U.S.C. § 1332(c) (1958 ed.). But Congress never expanded this grant of citizenship to include artificial entities other than corporations, such as joint-stock companies or limited partnerships. For these unincorporated entities, we too have "adhere[d] to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of 'all [its] members.' " Carden, 494 U.S., at 195-196, 110 S.Ct. 1015 (quoting Chapman v. Barney, 129 U.S. 677, 682, 9 S.Ct. 426, 32 L.Ed. 800 (1889) ).
Despite our oft-repetition of the rule linking unincorporated entities with their "members," we have never expressly defined the term. But we have equated an association's members with its owners or " 'the several persons composing such association.' " Carden, 494 U.S., at 196, 110 S.Ct. 1015 (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S.Ct. 690, 44 L.Ed. 842 (1900) ). Applying this principle with reference to specific States' laws, we have identified the members of a joint-stock company as its shareholders, the members of a partnership as its partners, the members of a union as the workers affiliated with it, and so on. See Carden, 494 U.S., at 189-190, 110 S.Ct. 1015 (citing Chapman, 129 U.S., at 682, 9 S.Ct. 426 ; Great Southern, 177 U.S., at 457, 20 S.Ct. 690 ; and Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 146, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965) ).
This case asks us to determine the citizenship of Americold Realty Trust, a "real estate investment trust" organized under Maryland law. App. 93. As Americold is not a corporation, it possesses its members' citizenship. Nothing in the record designates who Americold's members are. But Maryland law provides an answer.
In Maryland, a real estate investment trust is an "unincorporated business trust or association" in which property is held and managed "for the benefit and profit of any person who may become a shareholder." Md. Corp. & Assns. Code Ann. §§ 8-101(c), 8-102 (2014). As with joint-stock companies or partnerships, shareholders have "ownership interests" and votes in the trust by virtue of their "shares of beneficial interest." §§ 8-704(b)(5), 8-101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership-both of whom we viewed as members of their relevant entities. See Carden, 494 U.S., at 192-196, 110 S.Ct. 1015 ; see also § 8-705(a) (linking the term "beneficial interests" with "membership interests" and "partnership interests"). We therefore conclude that for purposes of diversity jurisdiction, Americold's members include its shareholders.
III
Americold disputes this conclusion. It cites a case called Navarro Savings Assn. v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980), to argue that anything called a "trust" possesses the citizenship of its trustees alone, not its shareholder beneficiaries as well. As we have reminded litigants before, however, "Navarro had nothing to do with the citizenship of [a] 'trust.' " Carden, 494 U.S., at 192-193, 110 S.Ct. 1015. Rather, Navarro reaffirmed a separate rule that when a trustee files a lawsuit in her name, her jurisdictional citizenship is the State to which she belongs-as is true of any natural person. 446 U.S., at 465, 100 S.Ct. 1779. This rule coexists with our discussion above that when an artificial entity is sued in its name, it takes the citizenship of each of its members.
That said, Americold's confusion regarding the citizenship of a trust is understandable and widely shared. See Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 201-206 (C.A.3 2007) (discussing various approaches among the Circuits). The confusion can be explained, perhaps, by tradition. Traditionally, a trust was not considered a distinct legal entity, but a "fiduciary relationship" between multiple people. Klein v. Bryer, 227 Md. 473, 476-477, 177 A.2d 412, 413 (1962) ; Restatement (Second) of Trusts § 2 (1957). Such a relationship was not a thing that could be haled into court; legal proceedings involving a trust were brought by or against the trustees in their own name. Glenn v. Allison, 58 Md. 527, 529 (1882) ; Deveaux, 5 Cranch, at 91. And when a trustee files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes. Navarro, 446 U.S., at 462-466, 100 S.Ct. 1779. For a traditional trust, therefore, there is no need to determine its membership, as would be true if the trust, as an entity, were sued.
Many States, however, have applied the "trust" label to a variety of unincorporated entities that have little in common with this traditional template. Maryland, for example, treats a real estate investment trust as a "separate legal entity" that itself can sue or be sued. Md. Corp. & Assns. Code Ann. §§ 8-102(2), 8-301(2). So long as such an entity is unincorporated, we apply our "oft-repeated rule" that it possesses the citizenship of all its members. Carden, 494 U.S., at 195, 110 S.Ct. 1015. But neither this rule nor Navarro limits an entity's membership to its trustees just because the entity happens to call itself a trust.
We therefore decline to apply the same rule to an unincorporated entity sued in its organizational name that applies to a human trustee sued in her personal name. We also decline an amicus ' invitation to apply the same rule to an unincorporated entity that applies to a corporation-namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11-21. When we last examined the "doctrinal wall" between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U.S., at 190, 110 S.Ct. 1015. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U.S.C. § 1332(c)'s special jurisdictional rule.
* * *
For these reasons, the judgment of the Court of Appeals is
Affirmed.
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_appnatpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BUFFALO TEACHERS FEDERATION, INC., Plaintiff-Appellant, v. Robert D. HELSBY, Joseph R. Crowley and Ida Klaus, as Members of the New York State Public Employment Relations Board, Defendants-Appellees.
No. 765, Docket 81-7405.
United States Court of Appeals, Second Circuit.
Argued Feb. 24, 1982.
Decided April 1, 1982.
Mady Gilson, Washington, D. C. (Bredhoff & Kaiser, Robert H. Chanin, Washington, D. C., of counsel), for plaintiff-appellant.
Richard G. Liskov, Asst. Atty. Gen. of the State of New York, New York City (Robert Abrams, Atty. Gen. of the State of N. Y., Stanley A. Camhi, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees’
Before FEINBERG, Chief Judge, and VAN GRAAFEILAND and MESKILL, Circuit Judges.
PER CURIAM:
Plaintiff, Buffalo Teachers Federation, Inc. (BTF), appeals from dismissal of its complaint against the chairman, Robert D. Helsby, and two members, Joseph Crowley and Ida Klaus, of New York’s Public Employment Relations Board (PERB). The complaint under 42 U.S.C. § 1983 sought declaratory and injunctive relief on the ground that the dues checkoff forfeiture provision of New York’s Public Employees’ Fair Employment Act (the Act), N.Y.Civ. Serv.Law § 210 (McKinney 1973 & Supp. 1981 — 1982), denied appellant the equal protection of the laws. After a non-jury trial in the United States District Court for the Southern District of New York, Judge John M. Cannella dismissed the complaint for reasons set forth in a carefully reasoned opinion, familiarity with which will be assumed. The opinion is reported at 515 F.Supp. 215 (S.D.N.Y.1981).
The statutory scheme at issue here, commonly known as the Taylor Law, has been described in detail in the companion ease of Shanker v. Helsby, 676 F.2d 31 at 32-34 (2d Cir., 1982). Appellant in this case attacks the dues checkoff forfeiture provisions, both on their face and as applied, because an allegedly arbitrary distinction has been drawn between employee organizations under PERB’s jurisdiction and those under the jurisdiction of mini-PERBs. As the district judge found, appellant was subjected to the dues checkoff forfeiture sanction after PERB found that appellant had engaged in an unauthorized 14-day strike in September 1976, its second since the enactment of the Taylor Law. Buffalo Teachers Federation, Inc. v. Helsby, 515 F.Supp. at 216-17.
Under section 210.3(f) of the Act, PERB “shall order forfeiture” of the dues checkoff privilege once it determines that a violation has occurred. By contrast, as the district judge noted, a mini-PERB “may” impose the forfeiture penalty under its substantially equivalent procedures once it finds a violation. Buffalo Teachers Federation, Inc. v. Helsby, 515 F.Supp. at 220. In the alternative, a court “may” revoke the dues checkoff privilege if it finds an employee organization in contempt of court. N.Y. Jud.Law § 751.2(a). Appellant argues that the statute is discriminatory on its face because once a violation is found, the provisions make imposition of the penalty mandatory for employee organizations under PERB’s jurisdiction and discretionary for those under mini-PERBs’ jurisdiction.
In fact, PERB has imposed the dues checkoff forfeiture penalty in approximately 96% of the cases in which it has found a violation. By contrast, as appellant argued below, mini-PERBs have ordered forfeiture of the dues checkoff privilege in approximately 28.6% of the cases in which a violation of the no-strike prohibition was found. Appellant therefore further urges that, as applied, this framework discriminates against it in violation of the Equal Protection Clause.
Both of these claims must be rejected. Because appellant neither qualifies as a suspect class nor asserts a fundamental interest, the challenged legislation will pass muster if it is “ ‘rationally related to furthering a legitimate state interest.’” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979) (quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976)); Civil Service Employees Association, Inc. v. Helsby, 439 F.Supp. 1272, 1276-77 (S.D.N.Y.1977). In reviewing the challenged provisions, we must keep in mind that “although this rational-basis standard is ‘not a toothless one,’ Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 2764, 49 L.Ed.2d 651 (1976), it does not allow us to substitute our personal notions of good public policy for those of [the legislature]. ...” Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1082, 67 L.Ed.2d 186 (1981).
The classification here clearly has a rational basis. In enacting the Taylor Law, the New York legislature faced the choice of creating either a uniform statewide system or a decentralized scheme to regulate public employee relations. The legislature could reasonably have determined that local autonomy would play an important role in fostering harmonious labor relations. See McHugh, New York’s Experiment in Public Employee Relations: The Public Employees’ Fair Employment Act, 32 Albany L.Rev. 58, 81-82 (1967). Particularly in light of the experimental nature of the Act, id. at 59, 95; King, The Taylor Act — Experiment in Public Employer-Employee Relations, 20 Syracuse L.Rev. 1, 1 (1968), the distinction drawn here can not be deemed an arbitrary or irrational one.
Moreover, we find that the procedures employed by PERB and mini-PERBs, although not identical, are substantially equivalent, especially since PERB must administratively determine that such equivalence exists before any mini-PERB is created. Department of Civil Service Rules and Regulations, Public Employment Relations Board, ch. VII, §§ 203.1-.8 (McKinney 1973). Because we find this substantial equivalence enough to satisfy the highly deferential standard of review employed here, we need not reach the state law question of whether different statutory language was employed simply to achieve stylistic consistency in separate statutory sections, as Judge Cannella held. In any event, assuming arguendo that the statutory language does create different standards, we would nevertheless find that the distinctions were a justifiable means of achieving greater local discretion and flexibility.
Although this system has produced disparate results for unions under PERB’s jurisdiction and those under the jurisdiction of mini-PERBs, we can not find that the provisions have been applied in a discriminatory fashion against appellant. PERB, by imposing the sanction in approximately 96% of the cases before it, has treated employee organizations under its jurisdiction in an evenhanded fashion. PERB certainly can not be faulted for applying the penalty to appellant in this case, for the strike called was an unusually long and serious one. The mini-PERBs apparently have not dealt unfairly with those organizations under their jurisdiction, for as the district court found, appellant neither contended nor introduced evidence that they had applied the penalty provisions in a discriminatory fashion. Shanker v. Helsby, 515 F.Supp. at 222 n.16. That different administrative bodies mete out disparate penalties can not, standing alone, constitute an equal protection violation. Appellant has nowhere demonstrated any invidious intent in the creation or operation of separate administrative agencies, and its claim of discriminatory application must therefore fail. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); see DiMaggio v. Brown, 19 N.Y.2d 283, 289-91, 279 N.Y.S.2d 161, 225 N.E.2d 871 (1967) (discriminatory intent must be shown to establish equal protection violation based on allegedly discriminatory application of Condon-Wadlin Act).
We therefore affirm the judgment of the district court.
. Presumably, the penalty has been utilized in fewer than 100% of the cases because under an unwritten internal policy, PERB will not impose the sanction when it finds that the circumstances of the case warrant less than a three-month suspension of the dues checkoff procedure. Buffalo Teachers Federation, Inc. v. Helsby, 515 F.Supp. at 219 n.7.
. Appellant in both the district court and this court has argued that the statistical disparity is even more pronounced because the relevant comparison is between the figures for PERB and those for both mini-PERBs and the Office of Collective Bargaining (OCB) combined. We have already reviewed at some length the enforcement pattern for employee organizations under OCB’s jurisdiction and held it constitutionally acceptable in the companion case of Shanker v. Helsby, 676 F.2d at 34-35. We will therefore focus here on the treatment of employee organizations under mini-PERBs’ jurisdiction. In any event, whether the statistical comparison is between PERB and mini-PERBs alone or between PERB and both mini-PERBs and OCB, we would hold the enforcement scheme constitutionally válid for the reasons set forth in the text and in Shanker.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_numresp | 99 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Cornelius E. SARZEN, Plaintiff-Appellant, v. Charles W. GAUGHAN et al., Defendants, Appellees.
No. 73-1223.
United States Court of Appeals, First Circuit.
Argued Sept. 10, 1973.
Decided Dec. 10, 1973.
Francis John Stolarz, Boston, Mass., for plaintiff-appellant.
Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for defendants-appellees.
Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
This appeal from denial of a petition for habeas corpus once again raises questions about procedures under the Massachusetts law providing for commitment of sexually dangerous persons, M.G.L. c. 123A. Sarzen complains that he was denied counsel and the right to a hearing prior to the 60-day observational commitment which preceded his final commitment hearing. These deficiencies are alleged to have rendered his later indeterminate life commitment for sexual dangerousness invalid as lacking in due process of law.
The district court held that Sarzen’s contentions were foreclosed by our decision in Gomes v. Gaughan, 471 F.2d 794, 798-801 (1st Cir. 1973). But petitioner maintains, correctly we hold, that Gomes is not dispositive of the present facts.
Sarzen, on January 10, 1961, pleaded guilty in the Hampden County Superior Court to indictments for rape and for assault and battery. Seven weeks earlier, he had raped a 17 year old female not known to him; and a month before that he had approached and put his hands on another female who fled. His juvenile record showed two 1959 “peeping Tom” offenses, one of which had been continued without sentence, and one of which had led to his commitment in a Youth Service Board facility, followed by six months parole. Seventeen years old when indicted for rape and assault, Sarzen had reached only fourth grade in a regular school.
Upon acceptance of Sarzen’s guilty pleas the court filed the assault charge and sentenced him to four to seven years imprisonment for rape.
The court did not at this time order Sarzen to be examined for possible commitment under M.G.L. c. 123A. He was instead confined to the Massachusetts Correctional Institution at Concord to serve the sentence for rape. Six months later, in July of 1961, Sarzen was examined by Dr. Cohen, a psychiatrist, after the Concord Superintendent had requested the Department of Mental Health to arrange for an examination. The request and examination are prescribed first steps to a determination of sexual dangerousness under § 6 of M.G.L. c. 123A. Unlike § 4, § 6 applies to persons convicted of any category of crime (non-sexual as well as sexual), and its procedures are available to the Commonwealth at any time until a sentenced prisoner is released. A single psychiatrist must first determine that the inmate “may” be sexually dangerous. Correctional authorities next file a motion with the court, which is accompanied by a copy of the psychiatrist’s letter, requesting an order for 60-days commitment for “examination and diagnosis.” § 6. If that motion is allowed, the inmate is transported to the Center where he is examined by at least two psychiatrists, § 6. If their report, which must be filed with the court within the 60-day period, “clearly indicates” sexual dangerousness, the district attorney “shall” file a petition for commitment, giving notice to the inmate or others on his behalf. Thereafter, an adversary court hearing is held at which the inmate is entitled to counsel and other safeguards. See §§ 5, 6. See Gomes v. Gaughan, supra.
Sarzen testified that Dr. Cohen’s July, 1961, visit was unannounced, brief, and unexplained. A guard told him that “everybody who commits a sex crime” was so examined. But Dr. Cohen, he claimed, revealed nothing about the purpose of the interview. Dr. Cohen, on the other hand, testified that while he could not remember the interview, he “always” tells inmates his name, who he is, who sent him, “and why I am examining, to determine whether or not they are sexually dangerous, and whether in my opinion they should have a period of observation at the Bridgewater Treatment Center.”
Whether or not Dr. Cohen advised Sarzen of the purpose of the interview, it is undisputed that Sarzen did not see nor learn of the letter thereafter sent by Dr. Cohen to the Superintendent of Concord recommending a • 60-day commitment for further observation and study. The letter also set forth purported facts about Sarzen, of which several are mistaken or are disputed by him. Dr. Cohen erroneously wrote that “[t]he records also reveal two arrests for drunkenness in 1959,” and that “[i]n addition, he was suspected of several attacks on girls in 1961.” [Emphasis supplied.] The county in which the superior court sat was misstated. Sarzen also now disputes Dr. Cohen’s characterization of the rape as “bizarre”, and denies ever admitting to Dr. Cohen that he had committed several assaults.
Possibly the errors came in part from a hasty reading of a document entitled “Official Version of Present Offense” prepared by someone at Concord soon after Sarzen came to be confined there. It details, seemingly from police sources, the rape and assault, and also recounts that the police suspected Sarzen “as being the person who was committing assaults upon women which had plagued them for the previous few weeks.” The chronology, while vague, is apparently 1960 or earlier; possibly Dr. Cohen took “1961” from the date of the document itself. It is unclear from where the misinformation as to drunkenness convictions came. Prison records indicated that Sarzen was evicted from the family home by his father “while the father was experiencing one of his drunken rages.” Possibly the father’s own record was confused with petitioner’s.
Dr. Cohen’s letter, together with a letter from the Superintendent of Concord containing an accurate, if less colorful, summary of Sarzen’s background and record, was sent in August, 1961, to the Superior Court. A motion for a 60-day commitment for examination and diagnosis accompanied these papers. The supporting papers did not indicate sexual misbehavior by Sarzen since his incarceration. Sarzen was not notified of the motion for commitment nor advised of the substance of any of the documents filed with the court. The motion was allowed without hearing on September 12, 1961. Sarzen was not offered, nor provided with, counsel.
He was taken to the Treatment Center for observation, and remained there during September and October, 1961. He testified that he neither asked nor was advised by the staff why he was there, or what the consequences of his examination might be, but conceded that he did learn about such matters from inmates. Sarzen also admitted to receiving, while at Bridgewater, a letter from the public defender who had represented him in the criminal proceeding, which informed him that “because of the sex crime . . . [he] could be committed to Bridgewater.”
Before Sarzen was returned to Concord, Dr. Cohen and Dr. Kozol, another Bridgewater psychiatrist, had filed with the court a report expressing the opinion that Sarzen was sexually dangerous.® Sarzen was not shown nor even notified of the report and, although he asked, was not told that he had been found to be sexually dangerous. He asserts that it was some ten months later that he first learned, from a Concord social worker, that he had been pronounced sexually dangerous.
Seven months after the psychiatrists’ report was filed, the District Attorney petitioned the court, on May 13, 1962, to have Sarzen committed as a sexually dangerous person as defined by Chapter 123A. Nothing further happened until November of 1963, when, at the District Attorney’s request, Sarzen was reexamined (at Concord) by Dr. Cohen. Dr. Cohen then wrote another letter repeating that Sarzen was sexually dangerous, citing much the same history as that in his letter of August, 1961.
Sarzen had been eligible for parole in April, 1962, and April, 1963, but was turned down on both occasions because of the outstanding petition to have him adjudged sexually dangerous. During this time Sarzen unavailingly wrote to state officials in an effort to get his case resolved.
The final commitment hearing took place in the Superior Court on February 24, 1964, more than two years after the psychiatrists’ report had been filed with the court. An attorney for Sarzen was, for the first time, appointed on the day of the hearing. Two psychiatrists testified, a Dr. Weiss, who had examined Sarzen once at Concord two days before the hearing, and Dr. Cohen. Dr. Weiss gave an opinion of sexual dangerousness based on his examination of Sarzen’s pre-1961 record and history, which included Dr. Cohen’s letters, as well as his impressions from the single interview.
Dr. Cohen’s opinion of sexual dangerousness was based on Sarzen’s pre-1961 history and a total of six interviews, four of them during the 60-day Bridge-water commitment in 1961. During a reasonably rigorous cross-examination, it was brought out that he likely erred in believing that Sarzen had two drunkenness convictions in his record. However, Dr. Cohen testified that the error would not affect his conclusion of sexual dangerousness. The two year delay, its affects on petitioner’s parole possibilities, and his attempts to expedite .the hearing were also mentioned. No witnesses were presented for Sarzen. He took no appeal from the Superior Court’s finding of sexual dangerousness.
In 1972, during the pendency of the federal habeas corpus proceedings, Sar-zen petitioned the Superior Court for re-examination and release pursuant to M.G.L. c. 123A, § 9. Following a hearing held in July, 1972, he was found to be no longer a sexually dangerous person and released upon the following conditions: probation for five years during which time he must attend meetings of Alcoholics Anonymous, receive out-patient care at the Treatment Center, and report to his probation officer monthly.
I
The Commonwealth urges that Sarzen has not given its courts an opportunity to pass on his claim and, therefore, has failed to exhaust his state remedies. It reasons that Commonwealth v. Gomes, 355 Mass. 479, 245 N. E.2d 429 (1969) dealt merely with the facial validity of parts of M.G.L. c. 123A, and that the mere anticipation of an unfavorable disposition is not enough to show exhaustion. In Gomes the Supreme Judicial Court, stressing the civil nature of c. 123A proceedings, rejected a due process attack levelled on “the absence of notice and of counsel in connection with the temporary commitment of the defendant to the treatment center.” 355 Mass, at 483, 245 N.E.2d at 432. The court held:
“The provision for a sixty-day examination of a prisoner under c. 123A, § 6, and a formal report, is a reasonable extension of society’s right to such custodial examination .... The statute and our rule [that there may be no punitive aspects to c. 123A confinement] reasonably protect the examined person inasmuch as no indefinite commitment can be made without notice and hearing and the opportunity for the aid of counsel. The preliminary examination, like all the other relevant recorded data, is available to aid the court at that hearing to determine if the defendant is a sexually dangerous person.” 355 Mass, at 485, 245 N.E.2d at 433.
There was no intimation that the court, presented with a different set of facts, would be prepared to recognize constitutional infirmities in actions conforming to the statutory procedure. See also LaMorre v. Superintendent, 347 Mass. 534, 538-39, 199 N.E.2d 204, 206-207 (1964).
When the highest state court has addressed itself to the issues raised, and there are no intervening Supreme Court decisions on point, nor any indication that the state court intends to depart from its former decisions, the exhaustion doctrine does not require a petitioner to present his claims in state court. See, e. g., Walsh v. Picard, 446 F.2d 1209, n. 2 (1st Cir. 1971); Perry v. Blackledge, 453 F.2d 856 (4th Cir. 1971); Lucas v. Michigan, 420 F.2d 259 (6th Cir. 1970); Pratt v. Maine, 408 F. 2d 311 (1st Cir. 1969). The Commonwealth contends that this well-accepted doctrine should not be applied to Sarzen because recourse to the state courts would not have been a futile or empty gesture even in 1971 when the petition was filed. It points to the change in the personnel of the Supreme Judicial Court since Gomes was decided in 1969, and to the likelihood that recent “striking developments” in the procedural due process area might further cause the state court to rethink the position taken in Gomes.
We do not treat these contentions as wholly idle. The magistrate, indeed, although agreeing with petitioner on the merits, concluded that it would be wise to allow the state court to review the matter. He was persuaded by the change in the court’s composition and the likelihood that the Superior Court judge who committed Sarzen did not (and probably could not have been expected to) know what had transpired previously. While there is sense in both propositions, neither is compelling. When a state, or for that matter, federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered. Even in as rapidly changing a field as constitutional law, two years is too brief a period to presume change. A federal court cannot require a petitioner to go to another court merely because it speculates that new judicial personnel may be persuaded to reach different results.
A federal court should recognize, whenever possible, the often greater ability of strong state courts to deal effectively with state legislative schemes. But we agree with the district court that petitioner, whose grievances go back to proceedings occurring a decade ago, and who has been litigating before us since 1971, is entitled not to be sent to yet another tribunal, no matter how able and enlightened.
II
Sarzen contends that the Commonwealth denied him due process by committing him for 60-days observation without first affording, him a hearing, with counsel, to determine his probable sexual dangerousness. Stated thus narrowly, Sarzen’s claim might seem to be foreclosed by our decision in Gomes v. Gaughan, supra, 471 F.2d at 798, in which we held that a sex conviction gave the Commonwealth sufficient cause to commit an inmate for 60-days psychiatric observation within the term of his sentence.
However, it was made clear in Gomes, citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), that c. 123A proceedings must afford due process. Id. 471 F.2d at 800. As one aspect of due process, we mentioned that counsel appointed prior to the 60-day diagnostic commitment might be useful “in identifying false data in an inmate’s file.” Id. 800. Only the peculiarities of Gomes’ case led us to conclude that such a role (or some substitute procedure for verifying the data) was “inapposite”. As it happened, Gomes and previous counsel had had a chance to review the relevant data, and Gomes’ present counsel, having been appointed well before the final commitment hearing, would have enabled Gom-es to use available pre-trial discovery procedures if needed. For these two reasons, we concluded that Gomes received ample opportunity to review and question “the adequacy of the history upon which the diagnosis was made.” Id. 801.
Sarzen’s case is altogether different. Sarzen did not have the assistance of counsel until the very day of his final hearing and, therefore, the pre-trial discovery procedures which we catalogued in Gomes, Id. 800, might as well not have existed. Moreover, there were factual errors in the history relied upon by the psychiatrists in making their initial and later diagnosis. Sarzen, never advised of the data being used, had no opportunity, formal or informal, to question it before the day of final commitment ; he was not even notified of many of the statutorily-prescribed steps being taken to have him committed. Sarzen was walled off from effective participation in his own case until the last day, when, in all probability, anything he might have done was too late.
Nothing in Gomes sanctioned c. 123A procedures falling so short of the fairness and respect for elementary rights which is at the heart of due process. See Mr. Justice Frankfurter concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161, 170, 71 S.Ct. 624, 95 L.Ed. 817 (1951).
We merely recognized in Gomes, as did the Supreme Court recently in Gagnon v. Searpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973), that due process is "not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.” Indeed, we reject Sarzen’s contention that due process necessarily required a counselled hearing prior to the 60-day commitment. Since the rape conviction provided sufficient basis for the Commonwealth’s decision to examine him, procedures other than a counselled preliminary hearing might have served adequately to permit examination and correction of the historical data upon which so much of the 60-day psychiatric evaluation was to hinge.
Due process in this setting calls for a fair balancing of the state’s interest in utilizing responsible diagnostic procedures to deal with “highly disturbed persons having manifestly dangerous propensities,” Gomes, supra, 471 F.2d at 800, against the inmate’s right to avoid a grievous loss of liberty and lifetime stigma except under the most rigorous safeguards. Without pretend-íng to deal with every possible situation, we think due process requires at least the following:
1. An inmate is entitled to be notified promptly whenever each of the critical steps imposed by M.G.L. c. 123A, § 6, as a prerequisite to an adjudication of sexual dangerousness, is taken. He may not be kept in the dark concerning actions so vital to his future. The prison superintendent’s request that an inmate be examined to determine if he “may” be sexually dangerous is the first such critical step. Therefore, before the involuntary psychiatric interview, the inmate must be ■ informed at least of its purpose and possible legal consequences. Dr. Cohen insisted that it was his usual practice to do so; and we would assume, as a matter of ethics, that a psychiatrist would feel bound to advise an inmate whether he was appearing in the role of personal counsellor or potential prosecutor. The inmate is also entitled to know if, after examination, the single psychiatrist has recommended that he may be sexually dangerous. He is entitled to be notified when the superintendent or other authority moves for a 60-day commitment and of the disposition of the motion. He is entitled to be informed (as apparently Bridgewater now recognizes) of the outcome of his examination there,
Timely notice of allegations and charges is an elemental aspect of due process. See, e. g., Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Concealed proceedings, in or out of court, cannot satisfy the requirements of due process. When a prisoner knows what is happening he can take steps, even before the appointment of counsel becomes constitutionally mandated, to protest obvious errors and to secure the assistance of private counsel, family or friends.
2. Prior to the 60-day observational commitment, opportunity must be afforded to the inmate to review and object to the record, history and other assembled facts of his life which psychiatrists may use in evaluating whether he is sexually dangerous. Cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973); United States v. Picard, 464 F.2d 215 (1st Cir. 1972). It is obvious from the statutory definition of sexual dangerousness and from the privileged status (see § 5) of psychiatric reports in these proceedings, that an inmate’s history — the background facts found in his prior criminal record and in writeups of social workers and probation officers — are factors crucial to the, psychiatric “diagnosis.” See Tippett v. Maryland, 436 F.2d 1153, 1164 (4th Cir. 1971) (Sobeloff, J. concurring in part, dissenting in part), cert. granted sub nom., Murel v. Baltimore City Criminal Court, 404 U.S. 999, 92 S.Ct. 567, 30 L.Ed.2d 552 (1971), cert. dismissed as improvidently granted, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). If the present case is typical, a determination of sexual dangerousness may be principally a projection of future conduct from past behavior. Postponing the opportunity to point out purported errors until the day of the final commitment hearing is a mockery of justice. The state psychiatrists will long ago have rendered a written diagnosis based upon the questioned facts; their opinion will have crystallized. Gagnon v. Searpelli, supra, 411 U.S. at 785, 93 S.Ct. 1756. Of course, the inmate’s claims of error need not be accepted if themselves incorrect. But he is entitled to make them known at a time when they can still be effective.
What procedures are best for this fact-verification process we do not attempt to suggest. “The primary responsibility for articulating standards of due process lies with those who have the most intimate knowledge of both the interests of prisoners and the administrative burdens entailed with providing due process . . . .” Palmigiano v. Baxter, 487 F.2d 1280, 1286-1287 (1st Cir. 1973). We do not preclude the possibility that social workers or others in the state’s employ might objectively and fairly review records with the inmate and note in writing his objections and corrections. While counsel might be helpful, especially in the case of disturbed or badly educated inmates, we cannot say that counsel is constitutionally mandated for this purpose prior to the observational commitment of one serving sentence for a sex crime, provided there is a careful and conscientious effort to check out the historical data with the inmate and to see that it is accurate and complete. Alternatively, a preliminary administrative or judicial hearing might be held. We hold simply that the inmate must be afforded a reasonable opportunity to see, examine, and correct, where justified, the historical data which is to be used in reaching the critical opinions on his sexual dangerousness made during the 60-day commitment. In so stating, we do not attempt to consider the Commonwealth’s responsibilities to those who may not be legally competent, nor do we consider the case of an inmate whose sentence is not for a sex crime.
3. The assistance of counsel should be offered to indigent inmates soon after the filing with the court, during the 60-day commitment, of a report of sexual dangerousness by the examining psychiatrists. In Gagnon v. Scarpelli, supra, 411 U.S. at 785, 93 S.Ct. 1756, the Supreme Court described how a parole or probation officer’s role as benevolent counsellor is “compromised” when the officer has decided to recommend revocation of parole or probation. Thereafter, the officer’s view of the probationer’s or parolee’s conduct differs “in this fundamental way” from the latter’s own view. Id, 785, 93 S.Ct. 1756 requiring that the difference be resolved. At that point, both the state and probationer/parolee have interests in accurate fact finding and the informed use of discretion. Closely analogous is the psychiatrists’ role-change when, incident to the 60-day commitment, they declare an inmate to be sexually dangerous. Until then, the psychiatrists may be expected to be relatively open and professionally detached. Indeed, we understand that three-quarters of the persons sent for 60-day observation to Bridgewater are found by the staff not to be sexually dangerous. Before the psychiatrists have rendered an adverse report, we are not persuaded that their role is so greatly at variance with the interests of the inmate as to require the state to assume the burden of appointing counsel for each person being examined or about to be examined.
But once an adverse report is issued, the psychiatrists’ role has changed. They have, in effect, become prosecutors ; their “benevolence” has been “compromised,” Id. 785, 93 S.Ct. 1756, the inmate needs independent assistance, including that of counsel. By then the state is no longer merely engaged in investigation and diagnosis, see Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The filing of a petition for final commitment by the district attorney has become a purely ministerial act. § 6. The inmate faces the certainty of proceedings which can lead to commitment for life. Cf. Lessard v. Schmidt, 349 Supp. 1078, 1099 (E.D.Wis.1972) (three-judge court).
Only if counsel is made available well before the day of the final commitment hearing will an inmate be assured of the effective assistance, and not mere presence, of counsel. Representation at the final hearing may otherwise be a “formality ... a grudging gesture to a ritualistic requirement.” Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). Counsel may help, in c. 123A, as in juvenile proceedings, “to make skilled inquiry into the fact, . . . and to ascertain whether he has a defense and to prepare and submit it.” In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 1448, 18 L.Ed. 2d 527 (1966). An attorney needs time, in advance of “trial,” to collect and examine records and reports, to talk to his client and to psychiatrists to decide whether a further psychiatric examination or consultation should be sought, and to formulate cross-examination of the state’s experts. Moreover, competent representation before trial in Sarzen’s case would doubtless have gained Sarzen a prompt hearing instead of the altogether unnecessary delay from October 1961, to February 1964. Had the court been made aware of the delay, there can be little doubt that it would have acted promptly.
A danger with procedures of this unique nature is that people assume, because the prisoner is a “patient” and his guardians are “doctors,” that whatever is done will be done in the inmate’s best interest. But, of course, much, perhaps most, of M.G.L. c. 123A is for society’s own protection. Cf. In re Ballay, 482 F.2d 648, 657-658 (D.C.Cir.1973). Rehabilitation and physical removal are goals common to civil and criminal commitment. When, to the person acted upon by the state, the consequences of commitment rather than incarceration appear to be identical, limits must be applied to what is done in the role of parens patriae. In re Gault, supra; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Not all psychiatrists, no more than all juvenile authorities, can be presumed to be competent or well disposed. Moreover, the inherently speculative nature of psychiatric predictions, resulting in confinement not for what one has done but for what one will do, demands more than minimal procedures, particularly when such confinement is accomplished outside the traditional criminal process, with its right to jury trial and other ancient safeguards. See Murel v. Baltimore City Criminal Court, 407 U.S. 355, 364-365, n. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Douglas, J., dissenting); Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288 (1966).
Any one faced with indefinite incarceration, whatever his past history, is entitled to formal notice of the steps being taken against him, to know about and challenge the historical data which will accompany him to the Treatment Center for the 60-day observational commitment, and to have the assistance of counsel well before the last day of the proceedings. We hold, therefore, Sarzen was denied the fundamentals of due process guaranteed by the Fourteenth Amendment.
III
We remand the question of relief to the district court. To our knowledge the question of relief was not argued in the district court, and it was not argued before us; and, of course, the parties had no way of anticipating the grounds of our decision. The district court should decide whether the deficiencies in procedural due process do or do not constitute harmless error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). But the court may also need to consider to what extent, if any, other statutory provisions and the later § 9 proceedings ameliorate the effect of constitutional infirmities on the original § 6 commitment. As petitioner was released in 1972, the Commonwealth and the petitioner may also wish an opportunity to consider a possible consent disposition serving maximally both petitioner's needs and those of the public.
Remanded for proceedings consistent herewith.
. An evidentiary hearing was earlier held before the federal magistrate, who concluded that Sarzen’s claims, though meritorious, should first be presented to the Massachusetts Supreme Judicial Court. The district court disagreed. Citing Commonwealth v. Gomes, 355 Mass. 479, 245 N.E.2d 429 (1969), infra, it found that recourse to the state court would be futile.
. It might have done so since, under § 4, if one is found guilty of described sex crimes, including rape, the court, prior to sentencing, may, on its own motion, commit the defendant for 60-days observation to the “Center,” i. e. the Treatment Center established by the Department of Mental Health within the Massachusetts Correctional Institution at Bridgewater. See §§ 1, 2. Of course, the defendant at this stage would already be represented by counsel. At the Center the defendant would be examined for sexual dangerousness by at least two psychiatrists who report their findings to the court. If the defendant is reported to be sexually dangerous, the court then conducts a hearing on this issue, following which, in lieu of imposing sentence, it may order him committed to the Treatment Center for an indeterminate period ranging from one day to life.
. The Magistrate appears to have believed Sarzen. He found that, “At the time of the interview, Sarzen was unaware of its purpose.”
. “This man, age 18, was sentenced in the Worcester Superior Court on 1/10/60 to a term of 4-7 years for rape. This crime was of a rather bizarre nature and was accompanied by force, violence and threats of bodily harm. This crime which occurred 10/17/60 had been preceded by a crime similar in nature and with the same pattern. However, in this case subject panicked and ran when the victim screamed. The records also reveal two arrests for drunkenness in 1959. There were two instances of peeping tom activities 8/30/59 and 12/31/58. In addition, he was suspected of several attacks on girls in 1961.
When interviewed, the subject admitted the crimes of assaults and his peeping Tom activities with all the details described in the police reports.”
. The Administrative Assistant to the Head of the Treatment Center testified that at the time Sarzen was committed for observation, it was the practice “to inform him orally of the procedures he would be going through.” Nothing written would, however, have been presented. Today a three page information sheet is given to each inmate, describing the sexually dangerous statute, and advising the inmate of the possible consequences of the examination. The sheet indicates that the inmate may, if he wishes, appear at one staff meeting where his case is discussed, and may see any member of the observation staff upon request. A decision, once reached by the psychiatrists, will be reported to him. The inmate is told that “A letter has gone out to your next of lcin informing them of your observation commitment here and giving them the name and telephone number” of the responsible staff member.
. The report repeated the misinformation of “1959 drunkenness (2).” It referred to the 9/28/60 assault and battery as a “similar offense” to the rape. The basis of the diagnosis was that his “offenses have shown a progression in severity and seriousness Admits rape and violence in the process. A repeater. A danger in terms of his uncontrollable aggressive impulses.”
. Section 6 provides that when the district attorney files -a petition for final commitment,
“[H]e shall give notice to the prisoner or to his parents, spouse, issue, next of kin, guardian, or next friend, if it appears to the district attorney that such prisoner is incapable of conducting his contest to the report. The court may require such further notice as it deems necessary to protect the interest of the prisoner, may continue the hearing pending such notice and may appoint a guardian ad litem, if necessary.”
We assume that this statutory notice requirement was complied with, although there is no evidence on the point in the record. The petition itself consists of two sentences, reciting that two named psychiatrists have certified subject to be sexually dangerous and requesting his commitment.
. “ . . . [Ajny person committed to the center, or a branch thereof, shall be entitled to have a hearing for examination and discharge once in every twelve months, upon the filing of a written petition by the committed person ... or any friend . . . . The hearing shall be conducted in the same manner as is provided for in sections five and six . . . . ” The statute goes on to provide for annual examinations by the Department of Mental Health of each committed person. If release is ordered, it may be “conditional,” with the individual ordered to report for periodic treatment and subject to supervision by a probation officer. Conditions and terms may be “revised, altered, amended, revoked by the court at any time,” and while conditionally released, the former inmate remains subject to the jurisdiction of the court until discharged. § 9.
. That Sarzen did not appeal from the Superior Court judgment ordering his commitment does not, of course, necessarily pre-elude habeas corpus relief based on a denial of due process if he exhausted, or should be excused from exhausting state remedies open at the time his petition was filed in federal court. Fay v. Noia, 372 U.S. 391, 398-399, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
. In tlie cited ease, Justice Frankfurter went on to say, aptly, 341 U.S. at 170, 71 S.Ct. at 648, “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.”
. While a probation violator is constitutionally entitled to a. preliminary hearing at the time of his arrest as well as a later, more comprehensive hearing, Gagnon v. Scarpelli, supra, 411 U.S. at 782, 93 S.Ct. 1756, the same principle is not applicable here. No further loss of liberty results from the observational commitment of one already in prison, nor, where a sex-crime was committed, is there any possible dispute as to a reasonable basis for brief psychiatric obser vation.
. The Hippocratic oath contains the words, “I will prescribe regiment for the good of my patients .... and never do harm to anyone.” One interviewed involuntarily is entitled to be told whether he is being examined for purposes possibly inimical to his own interests. It is not a sufficient answer to say that a sexually dangerous commitment is always for the inmate’s own good. In this nation we do not believe that Big Brother always knows best. An inmate facing loss of liberty may question the benevolence of his prosecutors.
. “The words ‘sexually dangerous person’ as used in this chapter shall have the following meaning : — Any person whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive behavior and either violence, or aggression by an adult against a victim under the age of sixteen years, and who as a result is likely to attack or otherwise inflict injury on the objects of his uncontrolled or uncontrollable desires.”
. No constitutional right to hearing and counsel before temporary commitment for examination, pursuant to 18 U.S.C. § 4244, has been recognized. See United States v. Muncaster, 345 F.Supp. 970 (N.D.Ala.1972); Caster v. United States, 319 F.2d 850 (5th Cir. 1963), cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973 (1964).
. By analogy, counsel is required “at every stage of a criminal proceeding where substantial rights of a criminal may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967) (sentencing); see also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (custodial interrogation); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (post-indictment lineup); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary hearing). Although the full panoply of criminal due process is not necessarily applicable to c. 123A proceedings, see Gomes v. Gaughan, supra, 471 F.2d at 799, we follow the Supreme Court’s directive in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), not to allow the "civil” label to deflect us from the fundamental interest at stake. See Heryford v. Parker, 396 F.2d 393, 396-397 (10th Cir. 1968).
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_r_natpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CHICAGO RAILWAY EQUIPMENT CO. v. COMMISSIONER OF INTERNAL REVENUE.
Nos. 4225, 4226.
Circuit Court of Appeals, Seventh Circuit.
March 27, 1930.
William S. Oppenheim, of Chicago, Ill., for appellant.
John V. Groner, of Washington, D. C., for appellee.
Before ALSCHULER, PAGE and: SPARKS, Circuit Judges.
PAGE, Circuit Judge.
No. 4225. In Chicago Ry. Equipment Co. v. Blair, 20 F.(2d) 10, where most of the facts appear, we reversed the order of the Board of Tax Appeals (Appeal of Chicago Ry. Equipment Co., 4 B. T. A. 452), which, sustained assessments of additional taxes for the years 1917, 1918, and 1919.
On the second hearing, the Statute of Limitations was pleaded, new evidence was taken, an order sustaining the assessments entered, and petitioner again asks for a reversal.
That the assessments for the years 1917' and 1918 were made after the statute had run,, unless saved by waivers, is admitted. Petitioner admitted a waiver on December 10,. 1925, long after the statute had run.
The Board has held that the burden is upon the Commissioner to prove a waiver. Bonwit Teller & Co. v. Commissioner, 10 B. T. A. 1300; Farmers Feed Co. v. Commissioner, 10 B. T. A. 1069; Stevens v. Commissioner, 14 B. T. A. 1120. Respondent offered no evidence of a waiver. The evidence shows the waiver of December 10, 1925, and two letters written to petitioner by the Revenue Department, both after the statute as to the 1917 and 1918 taxes had run, stating that waivers had been filed.
The Board held the assessments legal on the theory that: (a) The statements in the letters were evidence that waivers had been made; (b) a waiver at any time is a sufficient basis for an assessment.
We are of opinion that the letters were not even evidence that waivers had been made, and certainly they were no evidence of the time when they were made, or when they expired, or of any other fact. Such waivers were so obviously a part of respondent’s ¡case that the only inference to be drawn from 'his failure to produce them is that they did not exist.
It is urged, on authority of Insley Mfg. Co. v. Thurman, 33 F.(2d) 441, decided by This court, that a waiver, after the statute has •run, is good. While in that ease there was .such a waiver, it was made while a former waiver, made before the statute had run, was still in force. The question here was not "there decided, nor was it before us.
In Pictorial Printing Co. v. Commissioner, 38 F.(2d) 563, decided February 28,1930, we had before us the question as to whether .a waiver, made at a time when the Commissioner had no authority to assess the tax in question and the taxpayer was under no obligation to pay it, had any force. We there held that no valid waiver was shown, and we .here hold that the statute had run as to the 1917 and 1918 assessments. No such error is assigned as to the 1919 assessment.
It is urged that the Board erred in fixing The March 1, 1913, fair market value of pe.titioner’s properties, consisting of large factory buildings and equipment, located in five .states.
The plants were bought between 1892 and 1912, from older concerns, some of them from receivers or trustees, and at prices much below the original cost. From time to time large sums of money were -spent upon the properties for buildings, renewals, and repairs.
Appraisals prior to 1913 showed a property value of $334,244.09" greater than the cost of the properties to petitioner, and the book values were increased by that sum.
Respondent, apparently ignoring the question of March 1,1913, fair market value, proceeded to find the cost of the properties on December 31, 1916. The parties undertook before the Board to establish the March 1, 1913, market value.
The evidence before the Board shows several sets of figures bearing upon values.
(1). It is admitted that the cost of the properties as of Dee. 31, 1916, was..............$1,384,034.11
There was expended on the properties between Jan. 1, 1913, and Dee. 31, 1916.....$ 385,441.05
So that the cost March 1, 1913, was, .....................$ 998,593.06
If we add the amount put on the books because of the appraisals prior to 1913 and above referred to,..........$ 334,244.09
We have, as the March 1, 1913, undepreciated value, as shown by those figures,...........$1,332,837.15
Four of the appraisals prior to 1913 were made as early as 1908, and the last one in 1912. The above figures aid but little in finding the March 1, 1913, market value.
(2). Coats & Burchard, between Nov. 27, 1915, and Feb. 1, 1916, appraised all of petitioner’s properties. Those appraisal books are not before us, but the appraisals purport to show the reproduction cost, new, of all properties at that time. Such cost was, .....................$1,720,884.47
By deducting additions for 1913, 1914 and 1915, amounting to, $ 326,130.75
We have the March 1,1913, reproduction value, as,........$1,394,753.72
Forward testified he thought Coats & Burchard depreciation figures were...’........$ 262,000.00
So’ that, on those figures, the March 1, 1913, depreciated value was, ................$1,132,753.72
(3) . Petitioner’s president Leigh testified that he knew the fair cash market value of the properties March 1, 1913, and stated that it was $1,536,323. Forward testified that the properties on that date were worth $1,584,926.13 — some $48,000 higher than Leigh. If Leigh gave the details of his figures, we have not been able to identify them. He did, however, give what he said were figures in the Coats & Burehard appraisals, showing a total of $1,782,939. He testified that those figures represented the fair reproduction value of those properties at that time. If we deduct the additions in 1913, 1914, and 1915, $326,130.75, there remains as of March 1, 1913, $1,456,808.25, as Leigh’s idea of the Coats & Burehard 1913 reproduction value. That was nearly $100,000 less than Leigh testified was the March 1, 1913, fair cash market value. Leigh had not appraised the properties. His testimony, above referred to, may be explained by his testimony elsewhere — that he did not think there was much difference between the fair market value and the reproduction value. He also said his figures were identical with Coats & Burchard’s. Forward’s situation is much the same as Leigh’s. He testified: “I have not made any independent appraisal of any property other than on eertain items in the plant.” He took his figures from- the books and appraisals made by others..
(4). The record shows various balance sheets, beginning in 1908, that purport to show gross reproduction values. Depreciation reserves are there stated in gross. The Board had before it the details of those balance sheets, but they are not before us.
With their appraisal, Coats & Burehard prepared a depreciation sheet that was in petitioner’s possession, but that was not offered in evidence before the Board on either hearing. The presumption is that it was unfavorable to petitioner. This presumption is strengthened by the fact that the Coats & Burehard figures, on one Chicago property, show a depreciation of about 25 per cent. All properties, figured on that basis, would show a depreciation much greater than the amount stated by Forward to be his recollection of what the Coats & Burehard depreciation figures showed.
The Board gave full consideration to all the evidence, and out of all the conflicting evidence reached a conclusion as to the 1913 market value that must’be sustained.
For the purpose of arriving at the taxable value of the plant equipment, it was agreed that equipment classed as “power” should be depreciated 5 per cent., and that classed as “machinery and tools” 10 per cent. Petitioner’s complaint is that $239,677.35 worth of equipment that should have been classed as “machinery and tools” was erroneously classed as “power,” thereby depriving petitioner of a 5 per cent, depreciation on that amount.
In arriving at a proper depreciation percentage on such a large amount of equipment, located in five different states, it is quite manifest that the useful life of individual items could not be determined. Coats & Burehard, in their appraisal, listed 29 lots. Some of those lots are: Electric lighting system, $15,624.69; flasks, $35,092.05; furnaces and forges, $130,551.21; miscellaneous, $40,857.79, etc. • No detail is before us. Possibly the first item is power. Without further information, it is doubtful if anyone could, with a feeling of confidence that he was right, say to which class the other three lots should be assigned. It was necessary, arbitrarily, to make classes into which the items of the equipment could be placed, because many of the items could not be identified as belonging to one class or another, except on the theory that it was entitled to'the depredation fixed for that class. The testimony is unsatisfactory. Forward said, “I include in power the boilers and engines.” The witness and respondent got into a controversy over what was power and what was machinery and tools. We have here no information upon which to determine that question. The Board gave every opportunity for a full hearing, and was liberal'in the admission of evidence. We find no basis for disturbing its finding on the classification for depreciation purposes.
The order is affirmed as to the 1919 taxes, and reversed as to the 1917 and 1918 taxes.
No. 4226. There is in this ease no issue on the Statute of Limitations. Otherwise, the issues are the same as in No. 4225, and are determined by our decision in that ease.
The order of the Board of Tax Appeals is affirmed.
In cases where, we have made deductions of expenditures on the properties made after Jan. 1,1913, we have deducted the whole of the 1913 expenditures, because expenditures, if any, for the months of January and February, 1913, do not separately appear.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
sc_declarationuncon | A | What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
WARDEN, MARYLAND PENITENTIARY v. HAYDEN.
No. 480.
Argued April 12, 1967.
Decided May 29, 1967.
Franklin Goldstein, Assistant Attorney General of Maryland, argued the cause for petitioner. With him on the brief was Francis B. Burch, Attorney General.
Albert R. Turnbull, by appointment of the Court, 385 U. S. 985, argued the cause and filed a brief for respondent, pro hac vice, by special leave of Court.
Ralph S. Spritzer, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin and Beatrice Rosenberg.
Mr. Justice Brennan
delivered the opinion of the Court.
We review in this case the validity of the proposition that there is under the Fourth Amendment a “distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.”
A Maryland court sitting without a jury convicted respondent of armed robbery. Items of his clothing, a cap, jacket,- and trousers, among other things, were seized during a search of his home, and were admitted in evidence without objection. After unsuccessful state court proceedings, he sought and was denied federal habeas corpus relief in the District Court for Maryland. A divided panel of the Court of Appeals for the Fourth Circuit reversed. 363 F. 2d 647. The Court of Appeals believed that Harris v. United States, 331 U. S. 145, 154, sustained the validity of the search, but held that respondent was correct in his contention that the clothing seized was improperly admitted in evidence because the items had “evidential value only” and therefore were not lawfully subject to seizure. We granted certiorari. 385 U. S. 926. We reverse.
I.
About 8 a. m. on March 17, 1962, an armed robber entered the business premises of the Diamond Cab Company in Baltimore, Maryland. He took some $363 and ran. Two cab drivers in the vicinity, attracted by shouts of “Holdup,” followed the man to 2111 Cocoa Lane. One driver notified the company dispatcher by radio that the man was a Negro about 5'8" tall, wearing a light cap and dark jacket, and that he had entered the house on Cocoa Lane. The dispatcher relayed the information to police who were proceeding to the scene of the robbery. Within minutes, police arrived at the house in a number of patrol cars. An officer knocked and announced their presence. Mrs. Hayden answered, and the officers told her they believed that a robber had entered the house, and asked to search the house. She offered no objection.
The officers spread out through the first and second floors and the cellar in search of the robber. Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun and a pistol in a flush tank; another officer who, according to the District Court, “was searching the cellar for a man or the money” found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of Hayden’s bed, and ammunition for the shotgun was found in a bureau drawer in Hayden’s room. All these items of evidence were introduced against respondent at his trial.
II.
We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U. S. 451, 456. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
We do not rely upon Harris v. United States, supra, in sustaining the validity of the search. The principal issue in Harris was whether the search there could properly be regarded as incident to the lawful arrest, since Harris was in custody before the search was made and the evidence seized. Here, the seizures occurred prior to or immediately contemporaneous with Hayden’s arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.
It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. He testified that he was searching for the man or the money, but his failure to state explicitly that he was searching for weapons, in the absence of a specific question to that effect, can hardly be accorded controlling weight. He knew that the robber was armed and he did not know that some weapons had been found at the time he opened the machine. In these circumstances the inference that he was in fact also looking for weapons is fully justified.
III.
We come, then, to the question whether, even though the search was lawful, the Court of Appeals was correct in holding that the seizure and introduction of the items of clothing violated the Fourth Amendment because they are “mere evidence.” The distinction made by some of our cases between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband has been criticized by courts and commentators. The Court of Appeals, however, felt “obligated to adhere to it.” 363 F. 2d, at 655. We today reject the distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment.
We have examined on many occasions the history and purposes of the Amendment. It was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of “the sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U. S. 616, 630, from searches under indiscriminate, general authority. Protection of these interests was assured by prohibiting all “unreasonable” searches and seizures, and by requiring the use of warrants, which particularly describe “the place to be searched, and the persons or things to be seized,” thereby interposing “a magistrate between the citizen and the police,” McDonald v. United States, supra, 335 U. S., at 455.
Nothing in the language of the Fourth Amendment supports the distinction between “mere evidence” and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” without regard to the use to which any of these things are applied. This “right of the people” is certainly unrelated to the “mere evidence” limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same “papers and effects” may be “mere evidence” in one case and “instrumentality” in another. See Comment, 20 U. Chi. L. Rev. 319, 320-322 (1953).
In Gouled v. United States, 255 U. S. 298, 309, the Court said that search warrants “may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding . . . .” The Court derived from Boyd v. United States, supra, the proposition that warrants “may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken,” 255 U. S., at 309; that is, when the property is an instrumentality or fruit of crime, or contraband. Since it was “impossible to say, on the record . . . that the Government had any interest” in the papers involved “other than as evidence against the accused . . . ,” “to permit them to be used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself.” Id., at 311.
The items of clothing involved in this case are not “testimonial” or “communicative” in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. Schmerber v. California, 384 U. S. 757. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.
The Fourth Amendment ruling in Gouled was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals. The common law of search and seizure after Entick v. Carrington, 19 How. St. Tr. 1029, reflected Lord Camden’s view, derived no doubt from the political thought of his time, that the “great end, for which men entered into society, was to secure their property.” Id., at 1066. Warrants were “allowed only where the primary right to such a search and seizure is in the interest which the public or complainant may have in the property seized.” Lasson, The History and Development of the Fourth Amendment to the United States Constitution 133-134. Thus stolen property — the fruits of crime — was always subject to seizure. And the power to search for stolen property was gradually extended to cover “any property which the private citizen was not permitted to possess,” which included instrumentalities of crime (because of the early notion that items used in crime were forfeited to the State) and contraband. Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif. L. Rev. 474, 475. No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted. The remedial structure also reflected these dual premises. Trespass, replevin, and the other means of redress for persons aggrieved by searches and seizures, depended upon proof of a superior property interest. And since a lawful seizure presupposed a superior claim, it was inconceivable that a person could recover property lawfully seized. As Lord Camden pointed out in Entick v. Carrington, supra, at 1066, a general warrant enabled “the party’s own property [to be] seized before and without conviction, and he has no power to reclaim his goods, even after his innocence is cleared by acquittal.”
The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be “unreasonable” within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts. See Jones v. United States, 362 U. S. 257, 266; Silverman v. United States, 365 U. S. 505, 511. This shift in emphasis from property to privacy has come about through a subtle interplay of substantive and procedural reform. The remedial structure at the time even of Weeks v. United States, 232 U. S. 383, was arguably explainable in property terms. The Court held in Weeks that a defendant could petition before trial for the return of his illegally seized property, a proposition not necessarily inconsistent with Adams v. New York, 192 U. S. 585, which held in effect that the property issues involved in search and seizure are collateral to a criminal proceeding. The remedial structure finally escaped the bounds of common law property limitations in Silverthorne Lumber Co. v. United States, 251 U. S. 385, and Gouled v. United States, supra, when it became established that suppression might be sought during a criminal trial, and under circumstances which would not sustain an action in trespass or replevin. Recognition that the role of the Fourth Amendment was to protect against invasions of privacy demanded a remedy to condemn the seizure in Silverthorne, although no possible common law claim existed for the return of the copies made by the Government of the papers it had seized. The remedy of suppression, necessarily involving only the limited, functional consequence of excluding the evidence from trial, satisfied that demand.
The development of search and seizure law since Silver-thorne and Gouled is replete with examples of the transformation in substantive law brought about through the interaction of the felt need to protect privacy from unreasonable invasions and the flexibility in rulemaking made possible by the remedy of exclusion. We have held, for example, that intangible as well as tangible evidence may be suppressed, Wong Sun v. United States, 371 U. S. 471, 485-486, and that an actual trespass under local property law is unnecessary to support a remediable violation of the Fourth Amendment, Silverman v. United States, supra. In determining whether someone is a “person aggrieved by an unlawful search and seizure” we have refused “to import into the law . . . subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.” Jones v. United States, supra, 362 U. S., at 266. And with particular relevance here, we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at common law could be seized with impunity: stolen goods, Henry v. United States, 361 U. S. 98; instrumentalities, Beck v. Ohio, 379 U. S. 89; McDonald v. United States, supra; and contraband, Trupiano v. United States, 334 U. S. 699; Aguilar v. Texas, 378 U. S. 108.
The premise in Gouled that government may not seize evidence simply for the purpose of proving crime has likewise been discredited. The requirement that the Government assert in addition some property interest in material it seizes has long been a fiction, obscuring the reality that government has an interest in solving crime. Schmerber settled the proposition that it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for “mere evidence” or for fruits, instrumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v. United States, 353 U. S. 346. But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit.
The remedy of suppression, moreover, which made possible protection of privacy from unreasonable searches without regard to proof of a superior property interest, likewise provides the procedural device necessary for allowing otherwise permissible searches and seizures conducted solely to obtain evidence of crime. For just as the suppression of evidence does not entail a declaration of superior property interest in the person aggrieved, thereby enabling him to suppress evidence unlawfully seized despite his inability to demonstrate such an interest (as with fruits, instrumentalities, contraband), the refusal to suppress evidence carries no declaration of superior property interest in the State, and should thereby enable the State to introduce evidence lawfully seized despite its inability to demonstrate such an interest. And, unlike the situation at common law, the owner of property would not be rendered remediless if “mere evidence” could lawfully be seized to prove crime. For just as the suppression of evidence does not in itself necessarily entitle the aggrieved person to its return (as, for example, contraband), the introduction of “mere evidence” does not in itself entitle the State to its retention. Where public officials “unlawfully seize or hold a citizen’s realty or chattels, recoverable by appropriate action at law or in equity . . . ,” the true owner may “bring his possessory action to reclaim that which is wrongfully withheld.” Land v. Dollar, 330 U. S. 731, 738. (Emphasis added.) See Burdeau v. McDowell, 256 U. S. 465, 474.
The survival of the Gouled distinction is attributable more to chance than considered judgment. Legislation has helped perpetuate it. Thus, Congress has never authorized the issuance of search warrants for the seizure of mere evidence of crime. See Davis v. United States, 328 U. S. 582, 606 (dissenting opinion of Mr. Justice Frankfurter). Even in the Espionage Act of 1917, where Congress for the first time granted general authority for the issuance of search warrants, the authority was limited to fruits of crime, instrumentalities, and certain contraband. 40 Stat. 228. Gouled concluded, needlessly it appears, that the Constitution virtually limited searches and seizures to these categories. After Gouled, pressure to test this conclusion was slow to mount. Rule 41 (b) of the Federal Rules of Criminal Procedure incorporated the Gouled categories as limitations on federal authorities to issue warrants, and Mapp v. Ohio, 367 U. S. 643, only recently made the “mere evidence” rule a problem in the state courts. Pressure against the rule in the federal courts has taken the form rather of broadening the categories of evidence subject to seizure, thereby creating considerable confusion in the law. See, e. g., Note, 54 Geo. L. J. 593, 607-621 (1966).
The rationale most frequently suggested for the rule preventing the seizure of evidence is that “limitations upon the fruit to be gathered tend to limit the quest itself.” United States v. Poller, 43 F. 2d 911, 914 (C. A. 2d Cir. 1930). But privacy “would be just as well served by a restriction on search to the even-numbered days of the month. . . . And it would have the extra advantage of avoiding hair-splitting questions . . . .” Kaplan, op. cit. supra, at 479. The “mere evidence” limitation has spawned exceptions so numerous and confusion so great, in fact, that it is questionable whether it affords meaningful protection. But if its rejection does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of “a neutral and detached magistrate . . . .” Johnson v. United States, 333 U. S. 10, 14. The Fourth Amendment allows intrusions upon privacy-under these circumstances, and there is no viable reason to distinguish intrusions to secure “mere evidence” from intrusions to secure fruits, instrumentalities, or contraband.
The judgment of the Court of Appeals is
Reversed.
Mr. Justice Black concurs in the result.
Harris v. United States, 331 U. S. 145, 154; see also Gouled v. United States, 255 U. S. 298; United States v. Lefkowitz, 285 U. S. 452, 465-466; United States v. Rabinowitz, 339 U. S. 56, 64, n. 6; Abel v. United States, 362 U. S. 217, 234-235.
Hayden did not appeal from his conviction. He first sought relief by an application under the Maryland Post Conviction Procedure Act which was denied without hearing. The Maryland Court of Appeals reversed and remanded for a hearing. 233 Md. 613, 195 A. 2d 692. The trial court denied relief after hearing, concluding “that the search of his home and the seizure of the articles in question were proper.” His application for federal habeas corpus relief resulted, after hearing in the District Court, in the same conclusion.
The State claims that, since Hayden failed to raise the search and seizure question at trial, he deliberately bypassed state remedies and should be denied an opportunity to assert his claim in federal court. See Henry v. Mississippi, 379 U. S. 443; Fay v. Noia, 372 U. S. 391. Whether or not the Maryland Court of Appeals actually intended, when it reversed the state trial court’s denial of post-conviction relief, that Hayden be afforded a hearing on the merits of his claim, it is clear that the trial court so understood the order of the Court of Appeals. A hearing was held in the state courts, and the claim denied on the merits. In this circumstance, the Fourth Circuit was correct in rejecting the State’s deliberate-bypassing claim. The deliberate-bypass rule is applicable only “to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Fay v. Noia, supra, 372 U. S., at 438. (Emphasis added.) But see Nelson v. California, 346 F. 2d 73, 82 (C. A. 9th Cir. 1965).
The state postconviction court found that Mrs. Hayden “gave the policeman permission to enter the home.” The federal habeas corpus court stated it “would be justified in accepting the findings of historical fact made by Judge Sodaro on that issue but concluded that resolution of the issue would be unnecessary, because the officers were “justified in entering and searching the house for the felon, for his weapons and for the fruits of the robbery.”
The officer was asked in the District Court whether he found the money. He answered that he did not, and stated: “By the time I had gotten down into the basement I heard someone say upstairs, 'There’s a man up here.’ ” He was asked: “What did you do then?” and answered: “By this time I had already discovered some clothing which fit the description of the clothing worn by the subject that we were looking for . . . .” It is clear from the record and from the findings that the weapons were found after or at the same time the police found Hayden.
People v. Thayer, 63 Cal. 2d 635, 408 P. 2d 108, cert. denied, 384 U. S. 908; State v. Bisaccia, 45 N. J. 504, 213 A. 2d 185. Compare United States v. Poller, 43 F. 2d 911, 914 (C. A. 2d Cir. 1930).
E. g., Chafee, The Progress of the Law, 1919-1922, 35 Harv. L. Rev. 673 (1922); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor’s View, 44 Minn. L. Rev. 891, 914-918 (1960); Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif. L. Rev. 474, 478 (1961); Comment, 45 N. C. L. Rev. 512 (1967); Comment, 66 Col. L. Rev. 355 (1966); Comment, 20 U. Chi. L. Rev. 319 (1953); Comment, 31 Yale L. J. 518 (1922). Compare, e. g., Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361 (1921); Note, 54 Geo. L. J. 593 (1966).
This Court has approved the seizure and introduction of items having only evidential value without, however, considering the validity of the distinction rejected today. See Schmerber v. California, 384 U. S. 757; Cooper v. California, 386 U. S. 58.
E. g., Stanford v. Texas, 379 U. S. 476, 481-485; Marcus v. Search Warrant, 367 U. S. 717, 724-729; Frank v. Maryland, 359 U. S. 360, 363-365. See generally Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937); Landynski, Search and Seizure and the Supreme Court (1966).
Both Weeks and Adams were written by Justice Day, and joined by several of the same Justices, including Justice Holmes.
At common law the Government did assert a superior property interest when it searched lawfully for stolen property, since the procedure then followed made it necessary that the true owner swear that his goods had been taken. But no such procedure need be followed today; the Government may demonstrate probable cause and lawfully search for stolen property even though the true owner is unknown or unavailable to request and authorize the Government to assert his interest. As to instrumentalities, the Court in Gouled allowed their seizure, not because the Government had some property interest in them (under the ancient, fictitious forfeiture theory), but because they could be used to perpetrate further crime. 255 U. S., at 309. The same holds true, of course, for “mere evidence”; the prevention of crime is served at least as much by allowing the Government to identify and capture the criminal, as it is by allowing the seizure of his instrumentalities. Finally, contraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such an interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime.
Gouled was decided on certified questions. The only question which referred to the Espionage Act of 1917 stated: “Are papers of . . . evidential value . . . , when taken under search warrants issued pursuant to Act of June 15, 1917, from the house or office of the person so suspected, — seized and taken in violation of the 4th amendment?” Gouled v. United States, No. 250, Oct. Term, 1920, Certificate, p. 4. Thus the form in which the case was certified made it difficult if not impossible “to limit the decision to the sensible proposition of statutory construction, that Congress had not as yet authorized the seizure of purely evidentiary material.” Chafee, op. cit. supra, at 699. The Government assumed the validity of petitioner’s argument that Entick v. Carrington, Boyd v. United States, and other authorities established the constitutional illegality of seizures of private papers for use as evidence. Gouled v. United States, supra, Brief for the United States, p. 50. It argued, complaining of the absence of a record, that the papers introduced in evidence were instrumentalities of crime. The Court ruled that the record before it revealed no government interest in the papers other than as evidence against the accused. 255 U. S., at 311.
Significantly, Entick v. Carrington itself has not been read by the English courts as making unlawful the seizure of all papers for use as evidence. See Dillon v. O’Brien, 20 L. R. Ir. 300; Elias v. Pasmore, [1934] 2 K. B. 164. Although Dillon, decided in 1887, involved instrumentalities, the court did not rely on this fact, but rather on “the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice . . . .” 20 L. R. Ir., at 317.
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer: |
songer_appnatpr | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
LONGYEAR v. HELVERING, Com’r of Internal Revenue.
No. 6277.
United States Court of Appeals for the District of Columbia.
Argued Jan. 15, 1935.
Decided March 18, 1935.
W. B. McIlvaine and J. F. Dammann, both of Chicago, Ill., for petitioner.
Frank J. Wideman, Sewall Key, L. W. Post, and Robert H. Jackson, all of Washington, D. C., for respondent.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
A petition for the review of a decision of the United States Board of Tax Appeals relating to income taxes assessed against petitioner, John M. Longyear, Jr., for the years 1925, 1926, 1927, and 1929. The decision of the Board is reported in 28 B. T. A. 1086.
It appears that John M. Longyear, the petitioner’s father, a resident of Michigan, died testate on May 28, 1922, possessed of a large estate, and his last will and testament was duly admitted to probate in that state. By the terms of his will the testator directed that a residue of his estate composed of both real and personal property should be placed with trustees in trust for the purpose of collecting rents, issues, and profits, with power in the trustees to invest and reinvest, and to sell the corpus, and with directions to distribute the income as well as the proceeds from the sale of the property share and share alike to his children, of whom petitioner was one.
At the time of decedent’s death petitioner was married, his wife being Elizabeth B. Longyear, but they were estranged and actually separated from one another.
On November 1, 1922, the petitioner while in Mexico executed and delivered to his wife an instrument of assignment hereinafter called the “Mexican assignment,” whereby he assigned to her for her support and the support and education of their two children a one-half part of whatever sums of money due or to become due to him from the estate of his deceased father. Thereafter for a while during 1923 and a part of 1924 payments were made by .the trustees of the estate under this assignment to petitioner’s wife and children.
In October, 1923, a suit for divorce was filed in the state of Nevada wherein the petitioner was plaintiff and cross-defendant, and his wife was defendant and cross-plaintiff.
On December 20,1923, petitioner and his wife entered into a written agreement in the state of Nevada which by its terms canceled the Mexican agreement. The Nevada agreement recites in part that it was the intention of the parties to settle all their property rights and to provide for the custody, maintenance, and support of their children, and also to provide for the future comfort, maintenance, and support of petitioner’s wife. In order to carry out the purposes of the agreement, petitioner executed an assignment whereby he assigned to each of his two children a one-eighth interest and to his wife a one-fourth interest in “whatever sums of money or other property” might be due or coming to him from the estate of his father, stipulating therein that should his wife remarry after receiving from the trustees of his father’s estate the sum of $150,-000 in money or property then her right to any further distribution from petitioner’s share of the estate should cease upon such remarriage; and that if she should remarry before she received money or property to the value of $150,000 from petitioner’s share of his father’s estate, then and in that case she should continue after such remarriage to receive such payments as before until the total value received by her should equal the sum of $150,000, and thereupon her right to any further distribution from the estate should cease.
This agreement contained the following provision: “Article XII. Mrs. Longyear does covenant and agree with Mr. Longyear that upon the full performance of each and all of the covenants and agreements herein contained by him to be performed, she does and will expressly release Mr. Longyear from any and all claims or demands for alimony pendente lite or permanent, expense money, attorneys’ fees, costs of suit, maintenance or support.”
On December 22, 1923, a decree of divorce in favor of petitioner’s wife was entered by the Nevada court in the divorce case. The decree dissolved the marriage between the petitioner and wife, and approved the agreement entered into on December 20, 1923, supra, settling the property rights of the parties and providing for the maintenance and support of Mrs. Longyear and the support, education, custody, and guardianship of the two minor children.
Some time after the date of the Nevada decree the executors and trustees of the estate of John M. Longyear, deceased, began to question the validity of the assignments made by petitioner to his wife, and refused to make any further payments under them. Thereupon, on July 7,1924, petitioner’s wife in her individual capacity, and as guardian of the minor children, filed a bill in equity in the circuit court of Marquette county, Mich., asking a decree of the court holding the assignments valid and enforcing the terms thereof.
On December 29,1925, while the suit was pending, the parties thereto, including the executors and trustees of decedent’s estate, and Mrs. Longyear individually and as guardian for the minor children, entered into a written agreement in settlement of the various questions raised in the case. This agreement was duly filed in the circuit court and was approved by the court. The court in its decree held that the agreement of December 29, 1925, was a just and reasonable settlement of “certain good-faith controversies arising in and growing out of the administration of the estate of John M. Long-year, deceased, under his will,” and thereupon decreed that all the controversies involved in the action “be and hereby are forever settled, compromised, and adjusted in accordance with the terms of said agreement.”
As to Mrs. Longyear the settlement agreement provides for the payment to her by the trustees of the sum of $12,500, and a further sum equal to interest at the rate of 6 per cent, per annum upon $150,000 from the 1st day of July, 1925, to the effective date of the agreement. It also provided for the execution and delivery by the petitioner to her of a note bearing date as of the effective date of the agreement, for the payment to her of $150,000 together with interest at 6 per cent, per annum and payable on or before the 1st day of January, 1945. The agreement was to be made a part of the note by reference on its face. The agreement also provides that “there shall stand as security” for the note a one-fourth part or portion of the share of the petitioner in the estate of his father, and that all distributions from such one-fourth part from and after the effective date of the agreement and until full payment of the principal and interest of the note shall be paid to the holder of the note, and applied first to the payment of any accrued interest thereon and then on account of any balance of the indebtedness. A copy of the agreement is contained in the record.
Mrs. Longyear on her part released any and all rights which she had or might thereafter claim under the Mexican or Nevada assignments hereinbefore referred to.
After the date of this agreement various payments of interest on the $150,000 note and on account of the principal thereof were made directly to Mrs. Longyear as holder of the note, by the executors and trustees of John M. Longyear, deceased, from the share of petitioner in the estate. All of such payments and distribution were made in accordance with the provisions of the settlement agreement. The distributions included a payment of $4,510.95 as interest on the note from July 1, 1925, to December 30, 1925. Other payments of interest were made on the note by the trustees under the terms of the settlement agreement as follows, to wit: $5,812.33 in 1926; $5,237.07 in 1927; and, $4,800.28 in 1929.
The Commissioner of Internal Revenue included in the gross income of the petitioner the foregoing payments made to Mrs. Longyear by the trustees of the estate under the terms and conditions of the agreement and decree of the court above recited. The petitioner claimed that the Commissioner erred in including these sums in his gross returns upon the ground that they were not paid to petitioner, nor received by him, but were in fact paid by the trustees to his divorced wife in her individual right and capacity. Petitioner therefore prayed that the court should hold that the items of income above referred to were not his income; and, furthermore, that if they were held to be income received by him, he should be entitled to deductions from his gross returns for such part of the payments as represented interest upon the note for $150,000 held by his wife. Petitioner prayed that the deficiencies in tax determined by the Commissioner for the years in question be overruled and set aside, and that no deficiency order be entered for such years. The Board of Tax Appeals ruled against petitioner’s contention in both particulars. Whereupon the present petition for review was filed in this court.
We are of the opinion that the decision of the Board of Tax Appeals is correct. It appears from the record that in the so-called “Nevada agreement,” made December 20, 1923, it was stipulated in contemplation of a divorce between the parties that the petitioner should make an assignment of part of his interest in his father’s estate to his wife and that she should accept the same in lieu of all claims or demands for alimony, maintenance, and support. The decree of divorce granted by the Nevada court two days thereafter approved of the terms of this contract providing as stated for the future support and maintenance of Mrs. Long-year. In the agreement made on December 29, 1925, it was stipulated that Mrs. Long-year should release the rights secured to her by the Mexican and Nevada contracts and in lieu thereof she should be given a promissory note signed by petitioner, promising to pay her the sum of $150,000, with interest at the rate of 6 per cent, per annum, payable on or before the 1st day of January, 1945. It was stipulated that this note should be secured by a lien upon a one-fourth part of the share of petitioner in his father’s estate, and that all distributions from such part from and after the effective date of the agreement and until the full payment of the principal and interest of the note should be made to the holder of the note. These facts effectually contradict any claim that the •petitioner had irrevocably divested himself of his title and interest to such share of his father’s estate as was subjected to the lien of the plaintiff’s claim. He remained the owner thereof, subject to the lien securing the payment of the debt. The debt was payable on or before January 1, 1945, the petitioner thereby reserving the right to pay the debt and discharge the lien at any time. The transaction does not sustain the claim that the petitioner had made an irrevocable assignment of his share of his father’s estate or the income therefrom to his former wife. The case therefore falls within the principle declared by this court in James McDonald v. Helvering, decided December 10, 1934, reported 64 App. D. C. 92, 74 F.(2d) 1005. In this case, as in that, the income upon petitioner’s share of his father’s estate accrued to him and became constructively his property before it was paid upon his indebtedness by the trustees to his former wife. Lucas v. Earl, 281 U. S. 111, 50 S. Ct. 241, 74 L. Ed. 731; Corliss v. Bowers, 281 U. S. 376, 50 S. Ct. 336, 74 L. Ed. 916; Burnet v. Leininger, 285 U. S. 136, 52 S. Ct. 345, 76 L. Ed. 665; Luce v. Burnet, 60 App. D. C. 393, 55 F.(2d) 751; Lansill v. Burnet, 61 App. D. C. 107, 58 F.(2d) 512. Accordingly he was required to include the entire income in his gross return.
The claim made by petitioner for a deduction of such part of the payments made to Mrs. Longyear as paid interest upon the note held by her cannot be sustained. The note represented alimony secured to her by agreement between herself and her former husband. The obligation did not lose the character of alimony when incorporated in the note. Gilman v. Commissioner (C. C. A.) 53 F.(2d) 47, 50, 80 A. L. R. 209. It is well established that money paid by a husband to his wife for alimony, or for the interest upon an obligation executed for such a consideration, does not come within the exemption of interest provided for by section 214 (a) of the Revenue Act of 1926 (44 Stat. 9, 26 (26 USCA § 955 (a). In Gould v. Gould, 245 U. S. 151, 154, 38 S. Ct. 53, 62 L. Ed. 211, it is held that alimony paid monthly to a divorced wife under a decree of court is not taxable as income under the Income Tax Act of August 3, 1913 (38 Stat. 114, 166). It is said by the court, 245 U. S. 151, page 154, 38 S. Ct. 53, that: “The net income of the divorced husband subject to taxation was not decreased by payment of alimony under the court’s order; and, on the other hand, the sum received by the wife on account thereof cannot be regarded as income arising or accruing to her within the enactment.” In Treasury Regulations 45, Revenue Act of 1918, art. 291, it is said: “Alimony and an allowance paid under a separation agreement are not deductible from gross income.” In art. 73 idem, it is said: “Neither alimony nor an allowance based on a separation agreement is taxable income.” These provisions appear in Regulations 62, Revenue Act of 1921, arts. 291 and 73; Regulations 65, Revenue Act of 1924, arts. 291 and 73; Regulations 69, Revenue Act of 1926, arts. 291 and 73; Regulations 74, Revenue Act of 1928, arts. 281 and 83. Accordingly upon both contentions of petitioner we sustain the decision of the Board of Tax Appeals.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
sc_respondent | 100 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
CALMAR STEAMSHIP CORP. v. SCOTT et al.
No. 303.
Argued January 15, 1953.
Decided April 27, 1953.
Edwin S. Murphy argued the cause for petitioner. With him on the brief were Ira A. Campbell and Helen C. Cunningham.
By special leave of Court, Hubert H. Margolies argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Cummings, Assistant Attorney General Baldridge and Samuel D. Slade.
Russell T. Mount argued the cause for respondents. With him on the brief were Walter B. Hall and Wilbur H. Hecht.
Mr. Justice Frankfurter
delivered the opinion of the Court.
This is a suit in admiralty against British underwriters on a war-risk policy issued to cover the Calmar Corporation’s S. S. Portmar for a voyage, in the winter of 1941-1942, from the United States to a port or ports in the Philippine Islands and return to an Atlantic or Pacific port in the United States. After the voyage had commenced Australia was duly substituted for the Philippine Islands as the outbound destination. The Portmar was under charter to the United States. This suit, based on damage inflicted by enemy aircraft, was tried together with a libel against the United States claiming recovery for the same damage as well as additional charter hire. See post, p. 446. The District Court held the underwriters liable for a constructive total loss of the vessel. 103 F. Supp. 243. The Court of Appeals reversed. 197 F. 2d 795. We granted certiorari, 344 U. S. 853, because wide use, so the Court was advised, of the clauses of this policy makes their construction, a necessary issue here, a matter of more than individual concern.
Pursuant to the charter agreement between the Calmar Corporation and the United States, the Portmar left San Francisco for Manila on November 28, 1941. She carried high-octane gasoline, ammunition and other military supplies and equipment. She was some 600 miles southeast of the Hawaiian Islands on December 7, when Pearl Harbor was attacked. Her master at that time put her on a southerly course so as to avoid the combat area. On December 11, United States naval routing orders were received by radio on the Portmar. From that day until she was damaged and abandoned, a little over two months later, her every movement was in obedience to orders issued by competent United States and Australian authorities. The Portmar, which flew the American flag, was subject to these orders.
On December 30, the Portmar arrived at Sydney, Australia. Without being permitted to discharge cargo, she was dispatched up the coast to Brisbane. There her cargo was unloaded and sorted, part of it was put back on her, and she was sent almost half-way around the island to Port Darwin. She had been in Brisbane a week and had left on January 9, 1942. She was in Darwin on the 19th and lay at anchor till the 31st, waiting to dock and discharge cargo. This she then did, in part. Still carrying two thousand drums of her original load of gasoline, she left on February 4 for a relatively short trip across Joseph Bonaparte Gulf to Wyndham, where she arrived on the 8th. She returned empty to Darwin on the 12th. She then took aboard troops with equipment and armament and joined an exceedingly perilous expedition to Koepang, on the Island of Timor, some 500-odd miles northwest of Darwin. This expedition ran into heavy air attacks and turned back. On the 18th of February, the Portmar was at Darwin again, awaiting her turn to dock and discharge the personnel and equipment she had taken on. While thus at anchor on the morning of the 19th, she underwent bombing and strafing by Japanese airplanes and sustained the damage which forced her master to beach her and caused him to abandon her.
Article 2.17 of the charter agreement under which the Portmar sailed provided that her owners might obtain war-risk insurance, to be paid for by the United States. Before commencement of the voyage, Calmar took out the war-risk policy now in question on the hull and machinery of the Portmar, valued at $860,000. This policy insured “only against the risks of war, strikes, riots and civil commotions.” It was assembled — that seems an appropriate word — by superimposing on the age-old Lloyd’s form layer upon layer of warranties and riders. Warranties free the underwriters from obligations imposed by riders, and subsequent riders then reimpose obligations thus avoided.
“Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage,” the basic Lloyd’s policy states, “they are, of the Seas, Men-of-War . . . Enemies . . . Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes and People . . . .” The policy is then “warranted free from . . . capture, seizure, arrest, restraint or detainment, or the consequences thereof ... or any taking of the Vessel, by requisition or otherwise . . . also from all consequences of hostilities or warlike operations . . . .” This warranty is known as the capture and seizure war-rantyv It is superseded by a war-risk rider, which provides:
“It is agreed that this insurance covers only those risks which would be covered by the attached policy ... in the absence of the C. & S. warranty . . . but which are excluded by that warranty.
“This insurance is also subject, however, to the following warranties and additional clauses:—
“The Adventures and Perils Clause shall be construed as including the risks of piracy, civil war, revolution, rebellion or insurrection or civil strife arising therefrom, floating and/or stationary mines and/or torpedoes whether derelict or not and/or military or naval aircraft . . . and warlike operations and the enforcement of sanctions by members of the League of Nations . . . but excluding arrest . . . under customs or quarantine regulations, and similar arrests, restraints or detainments not arising from actual or impending hostilities or sanctions.”
A further warranty, known as the free of British capture warranty, carves a specific exception out of the war-risk rider. It holds the underwriters
“free of claims arising from Capture, Seizure, Arrest, Restraint, Detainment, Requisition, Nationalization or Condemnation by or under the authority of the government of Great Britain or any of its dominions ... or allies, or by any forces acting in cooperation with or under the control of them or any of them.”
But a saving clause, following immediately, provides that
“unless the insured Vessel is condemned this warranty shall not exclude losses otherwise covered by this policy which are caused by gunfire, torpedoes, bombs, mines or other implements of war, or by stranding, sinking, burning or collision, provided such losses would not be covered by a marine insurance policy (in the form hereto attached) warranted free of claims arising from Capture, Seizure or Detention.”
Construing such conglomerate provisions requires a skill not unlike that called for in the decipherment of obscure palimpsest texts. A judicial sigh recently uttered at the seat of Lloyd’s evokes a sympathetic echo. “Freight insurance entered into on the old form of marine insurance policy with deletions or additions to adapt the form to the intended contract [has] almost invariably given rise to difficulties, and the present case [is] no exception.” Mr. Justice Sellers in Atlantic Maritime Co. v. Gibbon, [1953] 1 All E. R. 893, 899. One envies not merely the perceptiveness of Lord Mansfield in matters of commercial law but his genial means of informing himself. We cannot resort to the elastic procedure by which Mansfield sought enlightenment at dinners with “knowing and considerable merchants,” nor have we any Elder Brethren of Trinity House to help us. To be sure, we have in this case the benefit of the views of the most experienced of admiralty judges. Considering the scanty contact this Court has these days with maritime law, we pay especial deference to the weighty judgment before us. But since it is before us, we cannot abdicate the duty to decide and must in the end exercise our own judgment however unsure it be.
Assuming that the policy was in force when the Port-mar was attacked, there is no doubt whatever that the underwriters would be liable for the damage under the basic adventures and perils clause taken alone. Cf. Standard Oil Co. v. United States, 267 U. S. 76. The capture and seizure warranty, on the other hand, would, of course, hold the underwriters free. We understand the war-risk rider to provide as follows: Risks which are covered by the adventures and perils clause, but which are excluded by the capture and seizure warranty, and only such risks, remain covered. These risks include, in the language of the adventures and perils clause, “Restraints and Detainments of all Kings, Princes and People,” or, in that of the capture and seizure warranty, “restraint or detainment, or the consequences thereof . . . or any taking of the Vessel, by requisition or otherwise.” The free of British capture warranty would, in turn, again very likely avoid liability in this case. But the war-risk rider makes the loss of the Portmar one which is “otherwise covered by this policy” within the terms of the saving clause in the British capture warranty. The loss is “otherwise covered by this policy” because it is insured against elsewhere within it, that is, in the war-risk rider. Since the Portmar had not been “condemned” when she was damaged by “implements of war,” the saving clause thus reinstates, in this case, coverage avoided by the free of British capture warranty, still assuming, of course, that the policy was in force at the time of the loss.
The underwriters contend that the phrase “losses otherwise covered by this policy” in the saving clause refers to losses which the policy would cover if they were not the consequences of an Allied restraint or detainment. A loss such as that of the Portmar, they say, is not otherwise covered because it followed a deviation which, had it not occurred pursuant to naval orders, would not be excusable and would have terminated coverage. The phrase in its context precludes such sophistical reading. It is plainly intended, together with the proviso at the end restricting the clause to losses which the capture and seizure warranty would exclude and which the war-risk rider therefore takes in, to make certain and doubly certain that the coverage of the policy as a whole is in no event enlarged. Moreover, if the sense were given to the “otherwise covered” phrase which the underwriters press upon us, the saving clause as a whole would be left quite devoid of any meaning. It would then uselessly preserve coverage only for losses which are securely covered anyway, despite the presence of the free of British capture warranty.
The underwriters resort to a second argument concerning the saving clause. They contend, not quite consistently with the earlier argument, that the clause was meant to save losses which occur while a vessel is under certain Allied restraints, limited in number, but not under others. The underwriters, upon the trial, offered to prove as much by an expert witness. No more need be said than that to vary the terms of the saving clause so as to make it mean what the expert in the District Court said it meant — which on its face it cannot mean — would be to reform the contract, and that the requirements of the equitable doctrine of reformation are not met in this case.
We thus read the provisions of this policy as insuring against a loss such as that of the Porimar, though it be the consequence of seizure by a British ally. So, reasoning substantially along these lines, did the District Court, and it proceeded to hold the underwriters liable. The Court of Appeals assumed that the “labyrinth of verbiage, within which lurks whatever contract was made, is to be understood to agree that, although the ship might at the time be under the ‘restraint of princes,’ the policy should cover her loss . . . .” But it held that “the policy was no longer in force when the loss occurred, the insured voyage having before then come to an end and the policy with it.” 197 F. 2d., at 796. The voyage had ended, the court said, because the dominion exercised over the Port-mar by Allied authorities was complete, and was very probably intended to continue indefinitely. The policy, in turn, was no longer in force because it was written for a voyage and could not outlast it, any more than a voyage charter would. Precisely as frustration of the voyage would end the latter, so it releases an underwriter from further liability.
The facts from which the Court of Appeals deduced that the detainment of the Portmar was to be prolonged indefinitely are these. When the Portmar reached Sydney, the Japanese had a working naval command of the Pacific, and Australia was threatened with invasion. The need for shipping was dire, as the use made of the Portmar herself shows. Indeed, after she was damaged and beached, military authorities salved her and patched her up hastily. The United States eventually requisitioned title to her, and she was used till finally destroyed. An American colonel in charge of transportation in Australia when the Portmar was there testified at the trial to the serious shortage of shipping, which, he said, continued throughout the year 1942. But as late as January 19, when the Portmar was in Darwin, the owners learned from an agent of the United States Maritime Commission that she would load chrome ore late in February and could be expected in Philadelphia in April. Australia was not, of course, the only place where there was a dearth of shipping at the time, and there is nothing in the record to show that a colonel on the spot had the last word as to the future use of an ocean-going vessel; if there were, it would strain credulity. Two further points are to be noted. First, when the Army salved and used the Portmar after she was damaged, she was no longer in any condition to make ocean voyages, and could not readily be returned to such a condition. And it was at that time that the United States formally requisitioned her — at that time for the first time. Second, there was testimony indicating that other vessels detained in Australia early in 1942 were held through the year. But there is no testimony that any vessels similar to the Portmar were so held. The witness — the Army colonel in charge — spoke of “[s]ome 21 small Dutch vessels.”
In point of time, the Court of Appeals fixed frustration of the voyage as having taken place at Brisbane, during the period of January 5 to 9, 1942. And so the underwriters contend here. Part of the Portmar’s cargo, which was unloaded at Brisbane for sorting, was, as we have seen, put back on her there, and she was sent with it to Darwin. It can hardly be maintained that the vessel’s trips along the Australian coast after Brisbane, while she was still carrying parts of her original cargo, or the trip from Sydney to Brisbane, constituted a departure from her voyage, whether or not excusable. For the voyage specified in the Portmar’s insurance policy was not to a single port as the outbound destination, but to a “port or ports” and back, “via port or ports in any order.” That being so, we cannot find that the voyage ended at Brisbane on the theory that it was there that dominion over the Portmar by requisitioning authorities became complete and hence there that the intention to cause her to abandon her voyage was formed or manifested. It is not maintained, nor could it be, that an explicit decision, objectively provable, not to allow the Portmar to continue on her voyage was ever reached by the authorities, and there is no showing whatever that her owners or charterer had any intention of discontinuing the voyage. On the evidence, this is not a case in which a change of voyage, releasing the underwriters, can be shown before the vessel is overtly employed in a manner inconsistent with the purpose or route of the original voyage. Compare Thellusson v. Ferguson, 1 Doug. 361, with Tasker v. Cunninghame, 1 Bligh 87, and Wooldridge v. Boydell, 1 Doug. 16; see 1 Arnould, Marine Insurance (13th ed., by Lord Chorley 1950), §§ 381, 385. Consequently, dominion or no, the Portmar was covered by her insurance at Brisbane and later, till she started on the Koepang expedition, or just before, as she is conceded to have been covered before Brisbane, while under equally complete dominion of naval authorities. Cf. Rickards v. Forestal Land, Timber and Railways Co., [1942] A. C. 50, 80.
The Koepang expedition was undoubtedly a venture inconsistent with the voyage specified in the Portmar’s insurance. We are prepared to assume, though of course we do not decide, that the Koepang trip would have terminated, on grounds of abandonment of voyage, the coverage of a policy warranted free of war risks or of one warranted completely free of British capture, and that, under such a policy, had the Portmar subsequently sustained damage not attributable to war causes, cf., e. g., Standard Oil Co. v. United States, 340 U. S. 54, there would have been no recovery. We assume that in those circumstances the Court of Appeals could have inferred as it did, on the basis of the Koepang venture and of the military situation, that the Portmar was to be retained indefinitely under requisition, and that her voyage was therefore over. But the point of this policy is that here the underwriters, by virtue of the saving clause, did insure against risks of British requisition. They insured, in other words, against consequences of a forced interruption of the voyage, which must necessarily throw into doubt the chances of completing the voyage as planned. Circumstances which may make out a change of voyage and cause termination of coverage under a policy warranted free of risks arising from seizure need not do so under one of insurance against such risks. In one as in the other, if they are both written for a voyage, there is an implied warranty that no different voyage will be undertaken. But it is a warranty which must be construed in light of the express provisions of the policy, and which may mean different things in different policies.
If, in the circumstances of this case, an owner who bought insurance against damage resulting from Allied requisition and one who bought a policy excluding such losses entirely stand on no different footing in respect of a sovereign’s intention to retain their vessels indefinitely, they hardly stand on a different footing in any substantial respect. And the one received very little, if anything, more than the other. For inferences of permanence, as strong as those in this case, will surely be permissible from most every requisition by a friendly sovereign for military uses. It is hard to imagine a military situation serious enough to lead a commander in the field to take it upon himself to requisition a friendly vessel, which is not sufficiently serious to make that requisition of presumptively indefinite, or at least uncertain, duration in his mind. Thus the difference between a policy containing a free of British capture warranty with a saving clause, such as we have in this case, and one without a like saving clause narrows down, under the holding of the Court of Appeals, to this: On the first policy, underwriters may be held liable for losses attributable to a small class of Allied restraints which are by their nature limited in duration, the most common example being detainment for inspection. On the second policy, underwriters may not be so held. This, of course, is exactly the result which would flow from the construction placed on the saving clause by the underwriters’ expert witness, a construction contrary to that assumed by the Court of Appeals to be the correct one. As to other restraints, the Court of Appeals would normally allow no recourse against the underwriters to either owner, the one who bought the first type of policy or the one who bought the second; to one on one theory, to the other on another; to one because he expressly agreed himself to bear all risks arising from Allied restraints, to the other despite the fact that he paid for insurance against such risks and could have had every expectation, on the face of the policy written for him, that he had effectively obtained it. Thus a significant part of the coverage of war-risk insurance, which is purchased separately, over and above ordinary insurance, and at great expense, would be rendered nugatory.
The provisions of the policy contain no time limitations on the detainments against which they insure. The District Court consequently, although recognizing that “[i]ndeed, that is broad coverage!”, felt constrained to hold that coverage would extend throughout the period of a detainment, no matter what its nature, and past the time when the voyage insured for had definitely been frustrated. The court thus, in effect, read the implied warranty concerning changes of voyage as referring, in this policy, to voluntary changes of voyage only. Rickards v. Forestal Land, Timber and Railways Co., [1942] A. C. 50, may support the position of the District Court. It is persuasive authority, since “[t]here are special reasons for keeping in harmony with the marine insurance laws of England, the great field of this business . . . .” Queen Ins. Co. v. Globe Ins. Co., 263 U. S. 487, 493. But we are not required to accept the broad ground on which the District Court rested. It is not contended here that anything done by any officer or official on the scene or elsewhere before the Portmar was damaged made it explicit — and now objectively provable — that she would be detained indefinitely or even for such a period of time as might be thought to postpone her return voyage unreasonably. Such an explicit decision might at least more likely have come to the prompt attention of the owners, whereas in its absence, as here, no owner, whether on the scene or not, could so much as make an informed guess concerning the fate of the voyage. We do not decide that case, but we do hold that if a policy such as this is to provide any appreciable and safely predictable protection over and above that of a policy which does not insure at all against consequences of Allied de-tainments, coverage cannot be said to have ended before an unambiguous, objectively provable decision has been made by the requisitioning sovereign to cause abandonment of the voyage.
A number of subsidiary questions in the case were all decided in favor of the owners by the District Court. The most important is raised by the contention that the vessel was never a constructive total loss and was not validly abandoned as such. The Court of Appeals, in view of its disposition of the case, found it unnecessary to consider any of these questions. They are not related to the major issue in the case, and so we remit them to the Court of Appeals.
The judgment of the Court of Appeals must be vacated and the cause remanded to that court for proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Minton dissents for the reasons stated in the opinion of Circuit Judge Learned Hand, 197 F. 2d 795.
Not until January 19 did word reach Calmar that the Port-mar had been diverted to Australia from the original course she had set for Manila. This was not due to any negligence on the part of the master, who throughout the adventure made sturdy and insistent efforts to keep in touch with his owners. It was simply the result of security regulations imposed by the proper authorities, and of difficulties of communication. When Calmar received this news, it chose to act under a clause in the policy providing:
“Held covered in the event of any breach of warranty as to date of sailing or deviation or change of voyage, provided prompt notice be given these Insurers when such facts are known to the Assured and/or their managers and an additional premium paid if required.” Calmar communicated the change in destination to the underwriters. The latter agreed to hold the Portmar covered by letter dated February 6, 1942. This agreement was retroactive. No additional premium was required.
“The truth is that [the] law of marine insurance is nothing more than a collection of rules for the construction of the ancient form of policy and such additions as are from time to time annexed to it. The ancient form dates back at least to the sixteenth century, and it is a document which the late Sir Frederick Pollock characterized, with justifiable asperity, as ‘clumsy, imperfect, and obscure.’ . . .
“Innumerable clauses have from time to time been devised to supplement the ancient form. Unhappily tradition seems to have caused them also in very many cases to be ‘clumsy, imperfect, and obscure,’ .... Oddly enough, the tradition has even infected the Legislature with a microbe of inaccuracy. In 1746 an Act . . . made re-insurance illegal, except in the case where 'the assurer shall be insolvent, become a bankrupt, or die.’ It is inconceivable that an insolvent underwriter should desire to re-insure, and obviously the evil aimed at was double insurance by the assured. ‘Re-insurance,’ however, had then its present well known meaning, and the draftsman of the Act used the wrong word in order to maintain the tradition of obscurity.” MacKinnon, L. J., in Forestal Land, Timber and Railways Co. v. Rickards, [1941] 1 K. B. 225, 246-247.
Lewis v. Rucker, 2 Burr. 1167, 1168.
“Lord Mansfield converted an occasional into a regular institution, and trained a corps of jurors as a permanent liaison between law and commerce. He won their confidence by social, as by professional, condescension, ‘not only conversing freely with them in court, but inviting them to dine with him.’ ” Fifoot, Lord Mansfield, 105, quoting from 2 Campbell, Lives of Chief Justices, 407.
The war-risk rider is not without its slight ambiguity. The word “only” in its first paragraph could be read to indicate that that paragraph simply sets the outer limit of the coverage but is not itself an insuring clause, that is, does not reinstate any of the coverage of the adventures and perils clause. We do not understand the underwriters to urge such a reading, and we do not think they could reasonably do so. Following its first paragraph, the rider insures against some risks not specifically mentioned in the adventures and perils clause, and also excludes from coverage certain detainments not connected with “actual or impending hostilities.” If the first paragraph of the rider is not to be read as an insuring clause, why is the subsequent insuring clause referred to in the rider as an “additional” one? What sense is there in singling out as risks to be insured against exclusively those risks which might be thought not to be clearly covered in the adventures and perils clause? Why should war-risk insurance, purchased at a time of impending war and covering “only against the risks of war, strikes, riots and civil commotions,” insure comprehensively against the perils of civil war but not against those of war itself? Finally, why should insurance be written in language construing a non-operative clause ?
The final proviso in the saving clause — that the losses must be such as would not be covered by a policy in which the capture and seizure warranty is in full force — is automatically complied with once it is established that the loss in this case is “otherwise covered by this policy.” For it is “otherwise covered” by virtue of the war-risk rider, which in turn covers only losses excluded by the capture and seizure warranty. These riders and warranties, which, when assembled, constitute the policy, are often independently developed. That may explain overlapping provisions such as these. Moreover, it is not hard to understand why extreme caution is exercised in making certain that only war risks are insured against by war-risk riders and saving clauses. For war-risk insurance is often — as it was in this case-written separately from ordinary marine insurance, and it is important to exclude losses, caused by collision or stranding, for example, which are attributable to the ordinary hazards of navigation.
See n. 5, supra.
The witness, William D. Winter, chairman t of the board of a leading marine insurance company in the United States, manager, for a number of years, of the American Marine Insurance Syndicate, and a former president of the American Institute of Marine Underwriters, testified as follows:
“During the war . . . Great Britain and her Allies took vessels into control ports in order to see whether they had contraband . . . on them. The ship at that point . . . was in the control of the Government authorities, or it was captured. . . . [G]oing into those control ports, [was] a very dangerous operation ....
“The cases had been settled, that the underwriters were not liable. The underwriters didn’t think that was doing their part of their job. So they constructed . . . this clause to go on hull policies . . . to show that they were willing, notwithstanding the fact that this vessel had been captured, nevertheless, if in entering a control port she was blown up by a mine, or if she went ashore . . . they would not refuse the claim because of that happening. It was to save the assured from something over which he had no control in a very limited situation, where the British Government had not captured it for the purpose of, at that point, condemning the boat because we say that if condemned, we were not liable, but for the purpose of finding out whether the boat, perhaps, should be condemned, and the underwriters felt that under those circumstances it was their duty to go ahead with their assured and take care of this unusual situation. But it was always within the framework of that voyage, of that particular incident of the voyage. The words are general, I agree . . . .”
The District Court heard this testimony subject to a later ruling on its admissibility, based on a finding that the language of the free of British capture warranty was or was not ambiguous. The court found that the language was not, and ruled that Mr. Winter’s testimony was inadmissible.
To be sure, going from Brisbane to Darwin instead of discharging all cargo at Sydney or Brisbane meant exposing the vessel to greater risk. The same may be said of returning to an Atlantic rather than a Pacific port in the United States. The policy permitted either. The underwriters could have avoided all these potential additional risks by writing a policy for a voyage from one specific port to another and back. They did not. Nor can the underwriters complain that in going from Brisbane to Darwin the Portmar hugged the coast, thus increasing her sailing time and, in one sense, again, the risk. For she did it for her safety, just as she justifiably turned south on the day Pearl Harbor was attacked.
It was a deviation, but it is worth noting that, in view precisely of the fact that the Portmar was under the complete and inescapable dominion of competent naval authorities, it was excusable, and hence not such a deviation as might, without more, release the underwriters from all further obligations. This would probably be true even had the Portmar’s policy been warranted free of all war risks, in which case the Koepang trip would have been a deviation occasioned by a peril not insured against. Cf. Robinson v. Marine Ins. Co., 2 Johns. (N. Y.) 89, and Scott v. Thompson, 1 Bos. & Pul. (N. R.) 181; see 1 Arnould, supra, § 435. But cf. Aktiebolaget M. Bank v. American Merchant Marine Ins. Co., 241 N. Y. 197, 149 N. E. 830. Not unless the Koepang trip marked a permanent change of voyage, an abandonment of the original one, could it be said that the coverage of even such a policy had undoubtedly come to an end.
See n. 7, supra.
In the Rickards case, the House of Lords dealt with voyage policies on cargo, insuring against detainments. No free of British capture warranty was involved. Upon declaration of war with Germany in September 1939, the masters of the three vessels in question put into neutral ports and then, under orders of the German Government, of which they were subjects, proceeded to run the blockade and try to make German ports. This constituted abandonment of the voyages insured for. One of the vessels made a German port. The other two were intercepted and, again under orders from the German Government, scuttled by their masters to avoid capture. The House of Lords held that the abandonment of the voyages, occasioned by restraint of princes — i. e., the orders of the German Government, which were binding on the masters — did not relieve the underwriters of liability. The underwriters here attempt to distinguish the Rickards case on the ground that it dealt with cargo rather than hull insurance, and on other grounds. We do not pass on the validity of these grounds of distinction. But the Rickards case does definitely dispose of an argument based on the following clause, which appeared in the Rickards policies and which is present in the policy before us now: “Warranted free of any claim based upon loss of or frustration of the insured voyage or adventure caused by arrests, restraints or detainments, of kings, princes, or peoples.” It was urged in Rickards that this warranty means that whenever damage or loss resulting from a restraint frustrates the voyage, the underwriters are relieved of any liability arising from that restraint. It is hence unnecessary to decide whether or not frustration of the voyage before the damage occurred ended coverage. The simple answer to this argument was that the claim made was not “based upon loss of or frustration of the insured voyage”; it was based upon loss of the cargo, as in this case it is based upon loss of the vessel. Of course, whenever as a consequence of a restraint a vessel or cargo is lost, or even severely damaged, the voyage is frustrated. If the frustration warranty applies in such cases, therefore, its effect is to hold the underwriters free of liability for any total loss, indeed, for most losses, resulting from detainment. We are authoritatively told that the clause was not intended to achieve such a sweeping result. See the observations of Viscount Maugham, [1942] A. C., at 72-73, of Lord Porter, id., at 106, and of MacKinnon, L. J., [1941] 1 K. B., at 252.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_const1 | 105 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Mark IUTERI, Petitioner-Appellee, v. Joseph A. NARDOZA, Parole Commissioner Northeast Region, United States Parole Commission, Victor Liburdi, Warden, New Haven Community Correction Center, Respondents-Appellants.
Cal. No. 277, Docket 81-2254.
United States Court of Appeals, Second Circuit.
Argued Sept. 11, 1981.
Decided Oct. 19, 1981.
Barry K. Stevens, Asst. U. S. Atty., New Haven, Conn., (Richard Blumenthal, U. S. Atty. for the D. of Conn., New Haven, Conn., of counsel), for respondents-appellants.
Ira P. Grudberg, New Haven, Conn. (Karen Fox Tross, Jacobs, Jacobs & Grudberg, New Haven, Conn., of counsel), for petitioner-appellee.
Before LUMBARD, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from an order of the United States District Court for the District of Connecticut, Eginton, J., granting Mark Iuteri’s motion for release on bail pending a decision on Iuteri’s petition for a writ of habeas corpus. We reverse.
On July 8, 1980, in the United States District Court for the District of Hawaii, petitioner was convicted of conspiracy to commit wire fraud and interstate travel in furtherance of a scheme to defraud, aiding and abetting the use of interstate travel in furtherance of a scheme to defraud, and interstate transportation of fraudulently obtained money. Following a two-day sentencing hearing, petitioner was sentenced to consecutive terms totaling fifteen years. During the hearing, the Government introduced testimony that petitioner had a history of serious criminal behavior, including homicide, assault, fraud, kidnapping, narcotics, and extortion. Petitioner’s attorney cross-examined the Government’s witnesses but petitioner did not testify. However, in support of his motion for bail below, petitioner submitted affidavits to refute the testimony of the Government’s witnesses.
Petitioner received his initial parole hearing in April 1981, and was given an effective parole date of July 2, 1981. When fixing this date, the hearing examiners did not have before them the incriminating biographical data submitted at the sentencing hearing. The parties disagree as to whether the probation department in Hawaii or the Special Strike Force Attorney who prosecuted the case was responsible for this oversight, but agree that the Parole Commission did not have the transcript.
Upon being informed that the Parole Commission had not considered the sentencing hearing material, the Strike Force prosecutor in Hawaii, on June 17, 1981, prepared and forwarded to the Commission a summary report of the proceedings. On July 1, 1981, Joseph A. Nardoza, Parole Commissioner, Northeast Region, voted pursuant to 28 C.F.R. § 2.28(f) to retard petitioner’s parole so that the Commission could determine whether it would reconsider its initial parole decision. On July 10, 1981, the Commission voted to reconsider. A special reconsideration hearing was scheduled for August 17,1981, but was postponed at petitioner’s request.
On July 9,1981, Iuteri filed a petition for a writ of habeas corpus. In a separate motion, he requested release on bail pending the district court’s decision on the habe-as corpus application. The district court reserved decision on the habeas corpus petition but granted petitioner’s bail application. This appeal followed.
Petitioner’s initial contention is that bail decisions are nonfinal orders and, therefore, not appealable by the Government. We disagree. There are compelling reasons to entertain appeals by the Government from orders granting bail in habeas corpus proceedings where, as here, incarceration has resulted from a conviction. Because of the conviction, the Government has a justified interest in petitioner’s continued incarceration, and petitioner has the burden of showing special reasons why bail is warranted. See Ostrer v. United States, 584 F.2d 594, 599 (2d Cir. 1978).
The object of habeas corpus proceedings is freedom from incarceration. Release on bail supplies the sought-after remedy before the merits of petitioner’s application are determined. If review of the grant of bail must await the district court’s decision on the habeas corpus application, the review will be substantially meaningless. In determining appealability, the finality rule is given a “practical rather than a technical construction”. Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)). Because the district court’s bail order gave petitioner relief which was collateral to the underlying proceeding and not subject to meaningful review on an appeal from the habeas corpus determination, its order may be treated as final. See, Luther v. Molina, 627 F.2d 71, 73 n.l (7th Cir. 1980).
The merits of petitioner’s habeas corpus application are not before us on this appeal because the district court has twice refrained from granting the requested writ. What is before us in the district court’s determination that the test set out in Ostrer v. United States, supra, 584 F.2d at 596 n.l, was met, namely, that the habeas petition raised substantial claims and that extraordinary circumstances existed that make the grant of bail necessary to make the habeas remedy effective. Petitioner claimed that the Commission improperly classified as new the information it received three days before his scheduled release, and that the automatic retardation provision of 28 C.F.R. § 2.28(f) was a denial of due process. The district court viewed both to be substantial claims with a “likelihood of success.” We disagree.
While petitioner’s counsel maintained that the substance of the Hawaii sentencing hearing was presented to the Parole Commission at the parole hearing, no transcript of the parole hearing is available and it is undisputed that the actual sentencing transcript and the summary report prepared by the Hawaii prosecutor had not been considered by the Commission. We therefore defer to the determination of Commissioner Nardoza that the materials constituted new information. We similarly find insubstantial petitioner’s claim that the failure to provide a hearing prior to retarding his scheduled release is unconstitutional. The pertinent regulation, 28 C.F.R. § 2.28(f), conditions a petitioner’s release date on the absence of new information that might warrant retarding the release. Moreover, since a hearing prior to the arrest of a parolee for alleged parole violations is not required as a matter of due process, Morris-sey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), a fortiori a prior hearing is not required to retard the scheduled release of someone still under confinement. We also note that 28 C.F.R. § 2.28(f) does expressly provide for a subsequent hearing to reconsider the parole in light of the new information and that such a hearing was scheduled in this case.
Iuteri contends further that his case is extraordinary because, if the habeas writ is granted, it will mean that his incarceration after July 2,1981, would have been without basis. However, there is nothing unusual about this. Virtually all habeas corpus petitioners argue that their confinement is unlawful. Petitioner’s final contention that the Parole Commission and prosecuting attorneys acted in bad faith to delay his release and thus hamper his ability to defend himself at his murder trial in Connecticut Superior Court is without support in the record.
In short, this case is totally devoid of facts which distinguish it in any way from typical habeas corpus proceedings. The district court’s grant of petitioner’s bail application, based on the court’s finding that danger to the community could be minimized “by ordering petitioner not to make any threats or intimidating remarks to any person while released on bond” constituted an abuse of discretion.
The order granting bail is reversed. Mandate shall issue forthwith.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer: |
songer_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.
CITY OF GARLAND, Plaintiff-Appellee, v. ZURN INDUSTRIES, INC., et al., Defendants, and URS Company, Successor in Interest to Forrest & Cotton, Inc., Defendant-Third Party Plaintiff-Appellant, v. UNITED STATES of America, Third-Party Defendant-Appellee.
No. 88-1697.
United States Court of Appeals, Fifth Circuit.
April 21, 1989.
Teresa Jenkins Carson, William R. Al-lensworth, David Taubenfeld, Haynes & Boone, Dallas, Tex., for appellant.
Bert R. Oastler, Neal J. Sweeney, Atlanta, Ga., for City of Garland, Tex.
Jay Tidmarsh, Trial Atty., Torts Branch, Civil Div., U.S. Dept, of Justice, Washington, D.C., Marvin Collins, U.S. Atty., Dallas, Tex., for U.S.A.
Before POLITZ and JOLLY, Circuit Judges, and HUNTER, District Judge.
District Judge of the Western District of Louisiana, sitting by designation.
E. GRADY JOLLY, Circuit Judge:
In this case we are asked to consider whether the Environmental Protection Agency (“EPA”) is protected by the “discretionary function” or “misrepresentation” exceptions to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (“FTCA”), for any negligence in its analysis, testing, or eventual approval of a physical-chemical waste water treatment process submitted by the City of Garland. Finding that the “misrepresentation” exception, 28 U.S.C. § 2680(h), bars this third-party action against the EPA for contribution, we affirm.
I
This case arose out of the construction of the City of Garland’s Duck Creek sewage treatment plant. The City of Garland, Texas (“Garland”) turned to URS Company (“URS”) in 1969 and 1970 to study ways in which the city’s sewage plant could be expanded and improved to meet anticipated Texas and EPA effluent discharge permit requirements. Garland wanted an innovative proposal so that it could receive a construction grant from the EPA. In addition, the city sought to be designated a regional waste water treatment facility so that it would be more likely to be awarded significant federal funding. In early 1970 Garland contracted with URS to provide a recommendation and design that would meet the EPA’s permit requirement. URS designed a physical-chemical (“p-chem”) treatment plant which incorporated a technologically innovative carbon adsorption system. Garland applied for and received a substantial grant from the EPA, which financed seventy-five percent of the cost of construction of the Duck Creek project. As part of the application process, before Garland was awarded a grant, the EPA reviewed and approved URS’s design.
As design engineer for the project, URS analyzed Garland’s sewage, reviewed ten years of data Garland had compiled, and conducted its own treatability tests. Although URS wished to build a scaled-down version of its proposed plant so that the p-chem process could be tested, the EPA rejected Garland’s funding request for such a pilot plant. The EPA stated that it had already conducted a wealth of experimentation and studies on p-chem waste treatment, so a test plant was not necessary. Garland declined to fund the pilot plant itself.
Construction of the Duck Creek project was begun in 1974 and the facility began operating in 1977. Soon after the new plant started operations, the system ruptured and could not be repaired to operate as originally intended. The plant did not meet the permit requirements, and as a result the EPA filed suit against Garland in federal district court for violations of the Clean Water Act, 33 U.S.C. § 1311, seeking civil penalties and an abatement of the condition. The City was forced to pay to defend against the environmental enforcement actions brought against it and to redesign the plant in order to bring it into compliance. The EPA withheld certain grant funds until the Duck Creek plant met its permit requirements, which also caused Garland to lose interest and bonding capacity. The EPA’s action against Garland was settled by consent decree, establishing interim effluent levels and assessing Garland a substantial penalty. Garland’s reconfigured plant only became fully operational in late April 1986.
In 1982 Garland filed suit against URS and other engineering consultants and contractors for the p-chem waste water treatment plant, in an effort to recoup the costs it had incurred under the consent decree. Garland requested over $26 million in damages from URS, alleging that URS’s novel physical-chemical process design could never have produced the required effluent quality, and URS had failed to recommend and perform essential pilot scale testing and sufficient waste water testing before recommending the process. See Zurn Industries, Inc. v. Acton Const. Co., 847 F.2d 234 (5th Cir.1988) (related case, reporting additional facts).
In August 1987 URS filed a third-party action against the EPA for contribution as joint tortfeasor. URS’s theory was that if Garland were awarded damages against URS, URS should be compensated by the EPA because the EPA’s acts or omissions in its review and approval process were negligent and a proximate cause of any injury Garland suffered from any deficiency in the design of the Duck Creek plant. URS’s claim evolved into a claim that the EPA had breached its duty to exercise care in the study of p-chem processes before counselling URS on the process and before approving URS’s design. URS alleged that it had relied heavily on the EPA’s input in making its final recommendation to Garland. URS relied on the EPA’s process design manual, met with EPA scientists and engineers for discussion, and combined the results of its own treatability studies with the EPA’s scientific data before recommending to Garland that it go ahead with the p-chem process. Further, URS alleged that the EPA itself participated in the analysis and design of the Duck Creek treatment plant, and reviewed and approved the plant’s final design and specifications. These were operational functions mandated by EPA regulations, and, it therefore was alleged, the EPA must be liable under the FTCA to Garland for any negligence in their execution.
The. United States removed the case to federal court and moved to dismiss URS’s claims, asserting that (1) the acts of the EPA were protected by the “discretionary function” exception to the FTCA; (2) URS was required to file an administrative claim before it brought its third-party action against the EPA; and (3) the doctrine of “derivative jurisdiction” precluded the federal court from obtaining jurisdiction over the removed action.
On March 25, 1988 the court found that the EPA had performed discretionary functions in examining the plans for the plant, in discussing the plans with URS, and in deciding to provide a grant to the city to construct the plant. The court granted EPA’s motion to dismiss on this basis, although it noted that any of the three grounds would have sufficed to warrant dismissal.
II
On appeal URS urges that the district court’s dismissal of URS’s claims was based on a misunderstanding of those claims. URS explains that its third-party claim against the EPA is based not on EPA’s discretionary decision to fund the Duck Creek plant, but on the EPA’s nondis-cretionary acts in implementing its decision to institute a research and development program in order to encourage and develop innovative waste treatment processes. The EPA contributed to Garland’s damages by failing to use due care both in conducting its research into the p-chem process, and in reviewing and analyzing the Duck Creek treatment plant design. These involved scientific research and experimentation, and so, URS contends, are not protected by the FTCA as “social, economic or political policy” decisions. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). Further, because the EPA would not provide funds to Garland for a pilot plant for independent testing of the p-chem system, Garland and URS were forced to rely on studies, test results, and information generated by the EPA’s research center and disseminated by the EPA’s independent research program. The EPA wrongly approved the process, and both Garland and URS relied to their detriment on that recommendation. For these reasons, it is argued, the EPA must be considered a joint tortfeasor and owe contribution to URS.
The EPA responds in turn that the FTCA’s discretionary function exception does bar URS’s claims because the EPA is required to weigh environmental and economic policy objectives in reviewing and approving a grantee’s design, and Congress gave the EPA complete discretion as to the manner in which it would conduct its research and disseminate the information it gleaned from that research. Moreover, to the extent URS alleges that it relied on the EPA’s research data, URS’s claim is barred by the FTCA’s misrepresentation exception, which has been construed to preclude claims based upon negligence in obtaining and communicating information upon which a party may reasonably be expected to rely in the conduct of his economic affairs. United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961).
Ill
We turn first to the EPA’s argument that 28 U.S.C. § 2680(h), the misrepresentation exception to the government’s waiver of sovereign immunity under the FTCA, bars URS’s claim for contribution. It is clear from the case law that section 2680(h), stating that the FTCA will not apply to “[a]ny claim arising out of ... misrepresentation,” protects the EPA against liability for contribution to URS for any damages Garland incurred as a result of its reliance on data the EPA generated or collected on the p-chem process and shared with URS.
In United States v. Neustadt, homebuyers negotiated a purchase price of $24,000 in reliance on an FHA appraisal that negligently misrepresented the value of the home. They sued the government under the FTCA for the difference between the lower fair market value of the property and the price they negotiated on the basis of the FHA appraisal. The district court found the government liable for $8,000. The Fourth Circuit affirmed, but the Supreme Court reversed, finding that section 2680(h) excluded from recovery under the FTCA claims arising out of negligent misrepresentation. The Court considered the legislative history of section 226 of the National Housing Act, 12 U.S.C. § 1701 et seq., requiring that a seller of property approved for FHA mortgage insurance “shall agree to deliver, prior to the sale of the property, to the person purchasing such [property], a written statement setting forth the amount of the [FHA] appraised value ...,” and found nothing from which it could infer that Congress intended to limit or suspend the application of the “misrepresentation” exception of the Tort Claims Act in the Neustadts’ situation:
Long before § 226 was added to the National Housing Act, ... it had been recognized in Congress that FHA appraisals would be a matter of public record, and would thus inure, incidentally, to the benefit of prospective home purchasers, by affording them the “benefit of knowing the appraised value set upon the property * * * by a trained valuator ...”
But at the same time, it was repeatedly emphasized that the primary and predominant objective of the appraisal system was the “protection of the Government and its insurance funds”; ... that “there is no legal relationship between the FHA and the individual mortagor.” Never once was it even intimated that, by an FHA appraisal, the Government would, in any sense, represent or guarantee to the purchaser that he was receiving a certain value for his money.
366 U.S. at 708-09, 81 S.Ct. at 1301 (footnotes omitted). Accordingly, the Supreme Court in Neustadt found no “specific duty” on the part of the FHA to make and communicate an accurate appraisal by virtue of the provisions of the National Housing Act, and therefore no actionable right of redress against the Government in the event a faulty appraisal was given. 366 U.S. at 708-09, 81 S.Ct. at 1301-02.
In Baroni v. United States, 662 F.2d 287 (5th Cir.1981), purchasers of subdivision housing units sued the government under the FTCA to recover for flood damage. The FHA had miscalculated the predicted fifty-year flood height and approved the subdivision so that loans made on residences constructed within the subdivision would be eligible for government-insured financing. After houses were constructed, the subdivision flooded twice and the plaintiffs’ homes were damaged. This circuit found that no federal duty to provide housing safe from flooding was imposed on the government by the National Housing Act.
While the information supplied by the government may ‘inure, incidentally, to the benefit of prospective home purchasers,’ the primary purpose of the government’s undertaking is to make sure that homes receiving FHA mortgages are constructed to standards warranting mortgage guarantee protection.... Congress did not intend ‘to extend to the purchaser any actionable right of redress against the Government in the event of a faulty appraisal....’
662 F.2d at 289 (citations omitted). The panel held that even if the government’s undertaking had created a duty under state law to determine the flood level nonnegli-gently, the damages complained of resulted from the communication of the government’s miscalculation, and the misrepresentation exception barred the purchasers’ claims. Id.
The instant case is not materially distinguishable from Baroni or Neustadt. It has not been shown that the EPA owed Garland any duty whatsoever on which URS can premise its claim for contribution, either to counsel on the p-chem process or to compile accurate information.
The EPA’s authority to conduct research and to make grants derives from the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act, 33 U.S.C. § 1251 et seq. The Act’s objective was to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), and to that end, under the Act Congress delegated broad authority to the EPA to establish national programs, conduct research, and develop effective processes for the prevention, reduction and elimination of pollution. 33 U.S.C. § 1254(a), (a)(1), (b)(7), (d). The EPA was authorized to collect the results of its research and other activities and make them available to the public, along with appropriate recommendations. 33 U.S.C. § 1254(b)(1), (b)(6). The Act also provided for financial-assistance grants for the construction of publicly owned treatment works meeting various criteria. 33 U.S.C. § 1281(g)(1). See generally 40 C.F. R. § 30.100 et seq (1973) (general grant regulations) and 40 C.F.R. § 35.900 et seq (1973) (specific grant regulations for construction of treatment works).
URS urges that the mandatory language of 40 C.F.R. §§ 35.925 and 35.925-7(b) (1973) demonstrates that the EPA owed Garland a statutory duty to review Garland’s proposal and warrant that it would meet the applicable permit requirements. These regulations state that
Before awarding initial grant assistance for any project for treatment works the Regional Administrator shall determine:
... [t]hat such works will meet applicable effluent limitations and applicable water quality standards and attain not less than secondary treatment....
Although this regulation places on the EPA a duty to review and evaluate proposed treatment works designs before awarding a grant of government funds, it serves as no guarantee to any grantee that the grantee’s plans will satisfy the applicable effluent limitations. 40 C.F.R. § 30.600 (1973), in effect at the time the City of Garland’s construction grant was approved, specifically dictated that “[t]he primary responsibility for administration of a grant must remain with the grantee, who is responsible for the success of the project for which the grant was made.” That section continued:
Although grantees are encouraged to seek the advice and opinions of EPA on problems that may arise, the giving of such advice shall not shift the responsibility for final decision to EPA. The primary concern of EPA is that granted funds be used to achieve the objectives of the grant project in a manner that will accord with program objectives and will make a maximum contribution to the betterment of the environment. Grantees and those assisting them on project work must direct their efforts to this end.
It is plain that the intent of the EPA’s regulations regarding the review and approval of construction grants under the Act is to ensure that federal funds are most effectively spent to achieve the central purpose of the Act — to eliminate the discharge of pollutants into the nation’s waters. See generally 40 C.F.R. §§ 35.915, 35.920 et seq. (1973); 40 C.F.R. § 35.915 (1988). For the same reasons that the Supreme Court in Neustadt and this circuit in Baroni held that the National Housing Act created no actionable duty running from the FHA to homebuyers, in this case we hold that the Clean Water Act imposed no duty on the EPA which would limit or suspend the application of the “misrepresentation exception” to the FTCA.
The respective requirements found in Neustadt and Baroni that the FHA perform appraisals on property prior to its sale and calculate the predicted fifty-year flood height prior to approving a subdivision for government-insured financing were imposed predominantly for the “protection of the government and its insurance funds,” Neustadt, 366 U.S. at 709, 81 S.Ct. at 1301, and to “make sure that homes receiving FHA mortgages are constructed to standards warranting mortgage guarantee protection,” Baroni, 662 F.2d at 289. In the instant case, the Clean Water Act’s regulations requiring review and approval of construction grants and treatment plant designs are also primarily for the purpose of ensuring that the government’s investment in these projects is put to best use to improve the quality of the environment. Although the City of Garland may have been an incidental beneficiary of a determination by the EPA that the Duck Creek Plant would achieve its permit requirements, it is apparent that the environment itself was the intended beneficiary of the EPA’s research efforts and its construction grant administration. See 33 U.S.C. §§ 1251, 1254. Cf. Neustadt, 366 U.S. at 708, 81 S.Ct. at 1301 (FHA appraisals inure only incidentally to the benefit of prospective homeowners); Baroni, 662 F.2d at 289 (flood height calculations inure only incidentally to the benefit of prospective home-buyers). We therefore find that the applicable regulations of the Clean Water Act imposed no duty on the EPA to warrant to Garland that its plant would meet its permit requirements, which would suspend application of the misrepresentation exception. Cf. In re Air Crash Disaster Near Silver Plume, 445 F.Supp. 384, 405-09 (1977) (Federal Aviation Act of 1958 and its regulations create an actionable duty on the part of the FAA personnel to air passengers, pilots and personnel to carry out operational activities under the Act in a nonnegligent manner).
In addition, to the extent that URS bases its claim for contribution on inaccurate data or test results the EPA furnished to Garland or to it as Garland’s agent, this claim is clearly barred by the misrepresentation exception to the FTCA. The FTCA does not allow for the recovery of damages resulting from the government’s negligence in obtaining and communicating information. Neustadt, 366 U.S. at 706, 81 S.Ct. at 1300; Baroni, 662 F.2d at 289.
Because federal courts lack subject-matter jurisdiction to entertain claims against the United States falling within one of the statutory exceptions to the FTCA, URS’s third-party claims against the EPA, alleging damages resulting from its reliance on information the EPA generated negligently and communicated, were properly dismissed by the district court under the FTCA’s misrepresentation exception, 28 U.S.C. §§ 1346, 2680(h).
IV
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
. All references are to the Clean Water Act in effect in 1973 and 1974, when the actions in this case occurred, unless otherwise noted.
. Although we need not decide this issue in view of our holding above that the misrepresentation exception bars URS’s claims, we note that the "discretionary function" exception, relied on by the district court, also does not seem misapplied here. It is not disputed that the EPA's decision to approve the Duck Creek p-chem process, as the district court held, was the exercise of a discretionary function. Further, the EPA was under no contractual or other duty to provide URS with information URS could use to profit through its contract with Garland; the EPA was simply performing a public service in counsel-ling both Garland and URS prior to its approval of Garland’s Duck Creek proposal.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_opinstat | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Owen Duane NUNNEMAKER, Petitioner-Appellant, v. Eddie S. YLST, Respondent-Appellee.
No. 89-15050.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 17, 1989.
Decided Feb. 21, 1990.
Juliana Drous, San Francisco, Cal., for petitioner-appellant.
Ronald E. Niver, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
PREGERSON, Circuit Judge:
Owen Duane Nunnemaker, a California state prisoner, appeals the district court’s dismissal of his petition for a writ of habe-as corpus filed under 28 U.S.C. § 2254. A California jury convicted Nunnemaker of first degree murder under Cal. Penal Code § 187. At trial, a psychiatrist called by the state prosecutor gave testimony on statements made by Nunnemaker in a post-arrest interview. Nunnemaker contends that the admission of the psychiatrist’s testimony violated his Fifth and Sixth Amendment rights, that his Fifth and Sixth Amendment claims are not barred by procedural default, and that he received ineffective assistance of counsel. In light of the Supreme Court’s recent decision in Harris v. Reed, - U.S. -, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), decided after the district court ruled on Nunnemaker’s petition, we reverse in part and remand the case to the district court for consideration of Nunnemaker’s Fifth and Sixth Amendment challenges to his conviction. We affirm the district court’s judgment that Nunne-maker was not deprived of effective assistance of counsel.
BACKGROUND
On January 30, 1976, Owen Duane Nunnemaker was convicted in California state court of first degree murder. He was sentenced to life in prison.
At trial, Nunnemaker introduced expert testimony to establish a diminished capacity defense then available under California law. To rebut this testimony the state prosecutor called as a witness a psychiatrist who interviewed Nunnemaker two days after his arrest. At the time of the interview, Nunnemaker was told that the psychiatrist was working for the prosecution. Nunnemaker, however, was not informed that he had the right to remain silent and the right to an attorney. At trial, defense counsel made several specific objections to certain statements made by the state’s psychiatrist, but failed to challenge the entire testimony on the grounds that it was based on an interview conducted in violation of Nunnemaker’s Fifth and Sixth Amendment rights.
On direct appeal to the California Court of Appeal, Nunnemaker raised for the first time his federal constitutional challenges to the testimony of the state’s psychiatrist. Affirming the conviction, the state appellate court expressly avoided these challenges and held that “the failure to interpose an objection during trial preclude[d its] consideration on review.” The state appellate court, however, considered on the merits — and rejected — Nunnemaker’s ineffective assistance of counsel claim. On direct appeal, the California Supreme Court denied Nunnemaker’s petition for hearing, without comment or case citation, on September 27, 1978.
Nunnemaker petitioned the California courts for a writ of habeas corpus. In his habeas petitions, he raised, among other claims, his federal constitutional challenges to the testimony of the state psychiatrist and his ineffective assistance of counsel claim. His petitions were denied.
Nunnemaker then filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California. The district court dismissed the petition without prejudice because the petition did not make clear whether all state remedies had been exhausted. Nunne-maker filed a second petition for habeas relief in the California Supreme Court, arguing again that his statements to the state prosecution psychiatrist were “clearly inadmissible,” and stating in greater particularity his claim of ineffective assistance of counsel. That petition was also denied, without comment or case citation, by the California Supreme Court on April 7, 1988.
Nunnemaker filed another federal habe-as petition. The district court issued an Order to Show Cause on July 8, 1988. On December 9, 1988, the district court denied the petition. The court held that Nunne-maker’s state procedural default barred review of the Fifth and Sixth Amendment challenges to the prosecution’s psychiatrist testimony, and that Nunnemaker had not been deprived of effective assistance of counsel.
Nunnemaker filed a timely notice of appeal. This court has jurisdiction over the district court’s final order under 28 U.S.C. § 2253.
STANDARD OF REVIEW
We review the district court’s denial of habeas corpus relief de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.) (en banc), cert. denied, - U.S. -, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). The question whether Nunnemaker was deprived of effective assistance of counsel is a mixed question of fact and law reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir.1989).
DISCUSSION
I. Procedural Bar
This case presents the issue whether the California Supreme Court’s denial of an original petition for writ of habeas corpus without comment or case citation constitutes a “plain statement” sufficient to establish the procedural default bar of federal habeas review under the Supreme Court’s recent decision in Harris v. Reed, 109 S.Ct. 1038. We hold that it does not.
The Supreme Court has held that a state prisoner barred by procedural default from raising a federal constitutional claim in state court “could not litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default.” Engle v. Isaac, 456 U.S. 107, 110, 102 S.Ct. 1558, 1562, 71 L.Ed.2d 783 (1982) (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). In Harris v. Reed, the Supreme Court applied this rule, but held that “a federal claimant’s [state] procedural default precludes federal habeas review ... only if the last state court rendering a judgment in the case rests its judgment on the procedural default.” 109 S.Ct. at 1043 (emphasis added). The Court explained that Wainwright v. Sykes’ holding that a state procedural default may bar federal habeas review is based on the adequate and independent state ground doctrine, under which the Court “will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Id. 109 S.Ct. at 1042 (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935); Murdock v. City of Memphis, 20 Wall. 590, 635-36, 22 L.Ed. 429 (1875)). The Court in Harris applied the “ ‘plain statement’ rule” of Michigan v. Long, 463 U.S. 1032, 1042 and n. 7, 103 S.Ct. 3469, 3477 and n. 7, 77 L.Ed.2d 1201 (1983), to state prisoner cases on federal habeas review, and held that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).
Under Harris, then, a procedural default bars review in federal habeas proceedings only if the last state court ruling on a case states the basis of its decision. Procedural default alone does not bar federal review; the state court’s ruling must have been based, at least in part, on an “adequate and independent” state procedural rule. Harris v. Reed, 109 S.Ct. at 1042. Harris undertakes to resolve the problem — often faced by district courts — of discerning from an ambiguous state court ruling the basis of a decision to deny habeas relief to a state prisoner raising federal constitutional claims. The plain statement requirement ensures that federal courts will decline to review state prisoners’ federal constitutional claims only where required by the interests of comity.
Here, the California Supreme Court was the “last state court to render judgment in the case.” That court did not clearly and expressly state its reliance on Nunnemaker’s procedural default when it denied his final habeas petition. The petition raised Nunnemaker’s objection to the testimony of the state’s psychiatrist and Nunnemaker’s ineffective assistance of counsel claim. From the record before us, we cannot say that the California Supreme Court’s denial of Nunnemaker’s final petition, without comment or case citation, was based on a procedural default rather than on the underlying merits of Nunnemaker’s claims. The rationale and plain language of Harris require that, where, as here, a state supreme court does not plainly state in its summary denial of an original habeas petition that its ruling rests on a state procedural bar, federal habeas review is not precluded.
In fact, the Supreme Court discussed in Harris the issue now before us. The Court addressed concerns raised over the burden the plain statement requirement would place on state courts ruling on habe-as petitions. The Court stated that “a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that ‘relief is denied for reasons of a procedural default.’ ” Harris v. Reed, 109 S.Ct. at 1044 n. 12. The California Supreme Court did not do that in this case.
The district court carefully reviewed Nunnemaker’s habeas petitions, but did not have the benefit of the Supreme Court’s later clarification of federal habeas law in Harris. We hold that the district court was not barred from reviewing Nunnemaker’s federal constitutional claims concerning the testimony of the state’s psychiatrist.
II. Ineffective Assistance of Counsel
Nunnemaker also contends that he was deprived of effective assistance of counsel, and that federal habeas relief should be granted for that reason. This Sixth Amendment ineffective assistance of counsel claim is based on Nunnemaker’s trial counsel’s failure to object to the admission of the state psychiatrist’s testimony on Fifth and Sixth Amendment grounds. The district court concluded that “[djefense counsel was clearly acting as the ‘counsel’ guaranteed by the Sixth Amendment.” We agree.
An ineffective assistance of counsel claim has two components:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A convicted defendant complaining of the ineffectiveness of counsel’s assistance must show that counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064.
The trial record demonstrates that Nunnemaker’s counsel vigorously objected to parts of the psychiatrist's testimony on various grounds. Further, because the state’s psychiatrist was subject to potentially damaging cross examination, trial counsel’s decision to allow the testimony, make specific objections, and impeach the witness on bias and credibility grounds may well have been a sound trial tactic.
Nunnemaker has not shown that his trial counsel’s performance “was not ‘within the range of competence demanded of attorneys in criminal cases.’” Id. at 687, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)).
CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED in part and REVERSED and REMANDED in part.
. The Sonoma County Superior Court denied Nunnemaker’s petition on February 25, 1985. The California Court of Appeal for the First Circuit denied his petition in late 1985. The California Supreme Court denied his first petition on December 3, 1986, and his second petition on April 7, 1988.
. The district court stated:
The petition is not entirely clear as to the procedural history of this matter. Petitioner states that none of his claims were raised by way of direct appeal in the California courts. However, petitioner did present these and other claims to the California Court of Appeal and Supreme Court by way of a habeas petition. The California Supreme Court denied the petition, citing In Re Waltreus, 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001] (1965) and In Re Swain, 34 Cal.2d 300, 304 [209 P.2d 793] (1949). These citations are cryptic. Waltreus holds that arguments rejected on appeal will not be reviewed again in habeas; thus the implications of this citation contradict petitioner’s assertion that he did not raise these claims on appeal. Swain, in contrast, holds that habeas claims not pleaded with sufficient particularity must be dismissed without prejudice. This latter citation implies that at least some of petitioner’s claims were not presented on appeal, and the California Supreme Court declined to consider their merits on procedural grounds.
As to any claims raised on appeal to the state and rejected on the merits, petitioner has exhausted his state remedies and this court can hear his habeas petition.... However, any claims not raised on appeal, and whose merits the state courts have not considered on habeas, must be dismissed....
District Court Order, September 8, 1987, at 2.
. Where comity does not require it, federal courts should not deny review. “[T]he federal courts ... have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” Harris v. Reed, 109 S.Ct. at 1045 (Stevens, J., concurring).
. Nunnemaker’s last filing with the California Supreme Court was an original habeas petition, and not a petition for hearing on a denial of habeas relief based on a procedural rule. Under California law, a state prisoner seeking collateral review of his or her conviction may file separate, independent habeas petitions in the superior court, court of appeal, and supreme court. Cal. Penal Code § 1475. In addition, however, a state prisoner whose habeas petition is denied in the court of appeal may file a petition for review of that denial in the California Supreme Court. Cal. Penal Code § 1506. In McQuown v. McCartney, 795 F.2d 807, 809-10 (9th Cir.1986), we held that when a habeas case is before the California Supreme Court on a petition for hearing, rather than as an original habeas petition, a summary denial by the state supreme court is not a decision on the merits of the petition. See also Tacho v. Martinez, 862 F.2d 1376, 1378-80 (9th Cir.1988) (applying McQuown and holding that the Arizona Supreme Court’s denial of review of a trial court denial of habeas relief without case citation or comment was not a decision on the merits). Cf. Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir.1976) (“Where a petition for a writ of habeas corpus presenting a federal constitutional question is denied by a state court with no reason given, we will assume that the state court has had an opportunity to pass upon the merits of the issue and has resolved it against the petitioner.’’).
McQuown does not affect the present case, because the California Supreme Court denied Nunnemaker’s original habeas petition on April 7, 1988. That ruling was a "judgment” under Harris, and was the last rendered by a state court in Nunnemaker’s case. We do not now address the question whether, in light of Harris v. Reed, the California Supreme Court's summary denial of a petition for hearing on a denial of habeas relief based on a procedural rule bars federal habeas review.
. In Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989), the Fifth Circuit held that, where a state trial court denied review of certain claims on state procedural default grounds but the appellate court "denied relief without written order,” the claims were procedurally barred. That court, however, did not reconcile its decision with the plain language of Harris that "a procedural default does not bar consideration of a federal claim ... unless the last state court rendering judgment in the case 'clearly and expressly’ states that its judgment rests on a state procedural bar," Harris v. Reed, 109 S.Ct. at 1043, and in fact discussed in detail the merits of the petitioner’s claims. We decline to follow Ellis v. Lynaugh.
. Nunnemaker raised this claim on direct appeal in the state court proceedings, and the state appellate court decided the merits of the claim. The state has made no argument that this claim was not properly before the district court. The district court correctly reached the ineffective assistance claim in its review of Nunnemaker’s habeas petition.
. This was the conclusion reached by the state appellate court on direct appeal.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
songer_fedlaw | D | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
The ATTORNEY GENERAL OF the TERRITORY OF GUAM on Behalf of ALL U.S. CITIZENS RESIDING IN GUAM QUALIFIED TO VOTE PURSUANT TO the ORGANIC ACT, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 83-1890.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 16, 1984.
Decided July 24, 1984.
Suzzane K. Horrigan, Asst. Atty. Gen., Territory of Guam, Agana, Guam, for plaintiffs-appellants.
Edward R. Cohen, Dept, of Justice, Washington, D.C., for defendant-appellee.
Before ANDERSON, SCHROEDER, and ALARCON, Circuit Judges.
SCHROEDER, Circuit Judge.
The plaintiffs in this ease, the Attorney General of Guam and four individuals, sued the United States on behalf of American citizens who are residents of Guam and who are registered to vote in territorial elections. Plaintiffs sought a judgment declaring the right of these citizens to vote in the United States Presidential and Vice Presidential elections. The district court dismissed. We affirm because the complaint failed to state a claim for which relief could be granted.
Guam is an unincorporated territory of the United States, under the plenary control of Congress pursuant to Article IV, section 3 of the Constitution. In 1950, Congress passed the Organic Act of the Territory of Guam, 64 Stat. 384 (codified as amended at 48 U.S.C. §§ 1421-1424 (1976 & Supp. V 1981)), which declared Guam a territory and established its government. The Organic Act incorporated specifically, as part of a bill of rights, the privileges and immunities clause of the Constitution, 48 U.S.C. § 1421b(u), and the equal protection clause of the fourteenth amendment, 48 U.S.C. § 1421b(n). At the same time Congress provided that Guamanians were American citizens. See 8 U.S.C. § 1407 (1982). See generally H.R.Rep. No. 1365, 82d Cong., 2d Sess., reprinted in 1952 U.S.Code Cong. & Ad.News 1653, 1734; P. Carano & P. Sanchez, A Complete History of Guam 365-98 (1964).
American citizens who are residents of Guam do not vote in the election of the President or Vice President of the United States, and plaintiffs contend that the ability to do so is a privilege or immunity of citizenship. The Constitution does not grant to American citizens the right to' elect the President, however. Article II, section 1, clause 2 of the United States Constitution provides:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the States may be entitled in the Congress____
Electors appointed by the states elect the President and Vice President. U.S. Const., Article II, section 1, clause 3. See also Anderson v. Celebrezze, 460 U.S. 780, n. 18, 103 S.Ct. 1564, 1573 n. 18, 75 L.Ed.2d 547 (1983) (“The Constitution expressly delegates authority to the States to regulate selection of Presidential electors....”).
Thus, citizens do not vote for the President. Electors, appointed by “each State,” vote for the President. Although the merits and shortcomings of the electoral college system have been debated over the years, see, e.g., Feerick, The Electoral College—Why It Ought to Be Abolished, 37 Fordham L.Rev. 1 (1968); Rosenthal, The Constitution, Congress, and Presidential Elections, 67 Mich.L.Rev. 1 (1968), it has not been replaced by direct election. The right to vote in presidential elections under Article II inheres not in citizens but in states: citizens vote indirectly for the President by voting for state electors. Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election. There is no constitutional violation.
A constitutional amendment would be required to permit plaintiffs to vote in a presidential election. The District of Columbia experience illustrates this point, for American citizens on Guam are not the first American citizens not residing in states to complain about their inability to vote in presidential elections. Until the passage of the twenty-third amendment to the Constitution, American citizens who lived in the District of Columbia could not participate in presidential elections. The District of Columbia is not a state, but rather is under the exclusive control of Congress pursuant to Article I, section 8, clause 17 of the Constitution.
The twenty-third amendment to the Constitution solved the problem of those citizens by ordering that the District would appoint electors who would “be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State ....” U.S. Const. amend XXIII, § 1. The House Committee on the Judiciary, reporting on the proposed amendment, recognized the obvious barrier of Article II, section 1, when it noted that absent an amendment, “voting rights are denied District citizens because the Constitution provides machinery only through the States for the selection of the President and Vice President. (Art. II, sec. 1).” H.R.Rep. No. 1698, 86th Cong.2d Sess., reprinted in 1960 U.S.Code Cong. & Ad. News 2. The report also observed that “apart from the Thirteen Original States, the only areas which have achieved national voting rights have done so by becoming States as a result of the exercise by the Congress of its powers to create new States pursuant to Article IV, section 3, clause 1 of the Constitution.” Id. See also Sanchez v. United States, 376 F.Supp. 239, 242 (D.Puerto Rico 1974) (suit by American citizens residing in Puerto Rico to vote in presidential elections did not present a substantial constitutional question that would justify convening a three-judge court).
The plaintiffs argue that a constitutional amendment is not necessary because, since the passage of the twenty-third amendment, the Supreme Court has so expansively interpreted Congressional power over federal elections that Congress already has legislated presidential voting rights for American citizens who are not residents of any state. Specifically, plaintiffs point to the decision in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), and the Overseas Citizens Voting Rights Act (OCVRA), 42 U.S.C. § 1973dd (1976 & Supp. V 1981), which relied upon Mitchell for its constitutional basis. Neither Oregon v. Mitchell nor the OCVRA, however, show that Congress has authorized all American citizens, even though not residents of a state, to vote in the presidential election. Both are premised upon the rights of citizens of states.
Oregon v. Mitchell upheld Congressional voting rights legislation which struck down state “durational residency” provisions and substituted nationwide uniform state residency requirements for voting for presidential and vice-presidential electors. Voting Rights Amendments of 1970, Pub.L. No. 89-110, Title II, § 202, as added Pub.L. No. 91-285, § 6, 84 Stat. 316 (codified at 42 U.S.C. § 1973aa-1 (1976)). All of the five opinions in the case assume residency in a state. See 400 U.S. at 124, 91 S.Ct. at 264 (J. Black); 400 U.S. at 147-50, 91 S.Ct. at 276-78 (J. Douglas); 400 U.S. at 213-16, 91 S.Ct. at 309-10 (J. Harlan); 400 U.S. at 237-40, 91 S.Ct. at 321-22 (J. Brennan); 400 U.S. at 285-92 (J. Stewart). This assumption is consistent with the Voting Rights Amendments section on residency requirements, which provides for a nationally uniform system of registration for “all duly qualified residents of [a] State.” 42 U.S.C. § 1973aa-1(d).
The OCVRA preempted state residency voting requirements for disenfranchised American citizens who had been residents of states but, retaining their American citizenship, moved to foreign countries. Under the Act, citizens who live outside this country may vote by absentee ballot in their last state of residency, whether or not they pay taxes in that state and whether or not they have a definite plan to return to that state.
The legislative history of the OCVRA makes clear that it was premised constitutionally on prior residence in a state. With regard to the constitutionality of the Act, a House Report stated:
The Committee believes that a U.S. citizen residing outside the United States can remain a citizen of his last State of residence and domicile for purposes of voting in Federal elections under this bill, as long as he has not become a citizen of another State and has not otherwise relinquished his citizenship in such prior State.
H.R.Rep. No. 649, 94th Cong., 1st Sess. 7, reprinted in 1975 U.S.Code Cong. & Ad. News 2358, 2364. Calling the proposed legislation a “reasonable extension of the bona fide residence concept” based on Mitchell, id. at 6, reprinted in 1975 U.S. Code Cong. & Ad.News at 2363, the House Report stated that the purpose of the bill was to “assure the right of otherwise qualified private U.S. citizens residing outside the United States to vote in federal elections.” Id. at 1, reprinted in 1975 U.S. Code Cong. & Ad.News at 2358.
Plaintiffs’ claim in this case is asserted on behalf of all voters who vote in Guam elections. It is not a claim on behalf of those who have previously qualified to vote in a state election. The OCVRA does not evidence Congress’s ability or intent to permit all voters in Guam elections to vote in presidential elections. The OCVRA rationale simply is inapplicable to the problem plaintiffs raise, and the judiciary is not the institution of our government that can provide the relief they seek.
Affirmed.
. There were additional grounds for the district court’s dismissal. It held that the Territory of Guam does not have standing to bring this lawsuit as parens patriae against the United States. See South Carolina v. Katzenbach, 383 U.S. 301, 324, 86 S.Ct. 803, 816, 15 L.Ed.2d 769 (1966). It further held that the Assistant Attorney General who was representing Guam was only provisionally admitted to practice before the district court and could not represent the individual plaintiffs, whose standing was not challenged. On appeal the government has not taken issue with appellants’ counsel’s qualification, and we therefore must address the merits of the individual plaintiffs’ claims.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_usc1sect | 1708 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
William Henry HIET, Appellant, v. UNITED STATES of America, Appellee.
No. 19747.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 21, 1966.
Decided Jan. 12, 1967.
Petition for Rehearing En Banc Denied March 9, 1967.
Mr. Richard J. Flynn, Washington, D. C. (appointed by this court), with whom Mr. David J. Boyd was on the brief, for appellant.
Mr. James A. Strazzella, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before Bazelon, Chief Judge, and Danaher, Circuit Judge, and Bastían, Senior Circuit Judge.
DANAHER, Circuit Judge.
This appellant was convicted of unlawful possession on February 17, 1965 of some 16 packages which had been stolen from the United States mails in violation of 18 U.S.C. § 1708. He has here contended that the District Court erred in denying his motion to suppress certain mail bags and that he otherwise had not received a fair trial.
The Government offered evidence to show that about 12:50 A.M. on February 17, 1965, two Metropolitan police officers had stopped their police car at Fourth and F Streets, N. E. This appellant then owned and was operating an automobile which he drove through the stop light at approximately 30 miles per hour. Officer Ashbum turned on the police car’s red light and with siren sounding, commenced pursuit of Hiet’s car. Thereupon, Hiet halted his car briefly but renewed his flight, only to strike two parked cars after turning from Second Street into G Street. The Hiet ear continued into an alley where it presently collided with a fence. Hiet jumped from the car and continued his flight on foot. The opening of the door on the abandoned vehicle had caused the car’s dome light to come on. As Officer Emmart approached he readily saw two bags labeled “U. S. Mail.” In the right front seat of the car was one Raymond Cloud whom the officer placed under arrest.
Meanwhile, Officer Ashbum had apprehended Hiet. With Cloud in the back seat of the police cruiser, Officer Emmart drove around the block and joined Officer Ashburn who called for a police wagon. Hiet was placed inside as the two officers returned to Hiet’s car. Both doors were still open, the inside dome light was still lighted, and the officers saw the two mail bags, one on top of the other, just behind the driver’s seat. The bags were taken to a police precinct and were examined by Inspector Weaver of the Post Office Department who determined that the packages in the mail bags had been mailed and had been received by the postal authorities.
Although no pretrial motion for the suppression of the mailed items had been made, defense counsel at trial asked to reserve the right to object to the introduction of the evidence. In due course a motion to suppress was offered on the ground that the mail bags had been seized without the officers’ having procured a search warrant. The trial judge ruled that the seizure was valid.
When the officers approached the car they saw the mail bags in plain view, and the case accordingly, is totally unlike the circumstances shown in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); cf. Price v. United States, 121 U.S.App.D.C. 62, 348 F.2d 68, cert. denied, 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125 (1965). Since there was no search, Harris v. United States, 125 U.S.App.D.C. -, 370 F.2d 477 (en banc, 1966), a search warrant was unnecessary. The only question is whether or not the mail bags could be seized. Although it is possible that the mail bags could have been in appellant’s possession lawfully, the cir-cumstanees outlined above gave the officers probable cause to believe that a crime involving the mail bags had been, and was being, committed. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The trial judge so found. The officers could seize the mail bags as a fruit of the crime.
The appellant did not take the stand and no explanation was offered as to his possession of the mail bags. Cf. Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Dunlop v. United States, 165 U.S. 486, 502, 503, 17 S.Ct. 375, 41 L.Ed. 799 (1897).
The appellant has not substantiated his claim that the trial court abused its discretion by not granting a continuance. The judgment of the District Court is
Affirmed.
. The intoxicated Cloud informed police that Hiet had picked him up and was taking him home; he had no knowledge concerning the mail bags. What disposition was ultimately made of Cloud’s case does not appear on this record. The Government unsuccessfully attempted to locate him,, but Cloud did not appear at Hiet’s trial.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer: |
songer_district | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Gloria AULET, Appellant.
No. 547, Docket 79-1228.
United States Court of Appeals, Second Circuit.
Argued Jan. 7, 1980.
Decided March 10, 1980.
Kristin Booth Glen, Hofstra Law School, Hempstead, N. Y., for appellant.
Vivian Shevitz, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Harvey M. Stone, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for appellee.
Before MOORE, FRIENDLY and MES-KILL, Circuit Judges.
MESKILL, Circuit Judge:
This is an appeal from a judgment of conviction entered in the United States District Court for the Eastern District of New York after a three day jury trial before Chief Judge Jacob Mishler. Appellant was convicted of the knowing importation of cocaine into the United States and of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 952(a) and 841(a)(1), and was sentenced to two years’ imprisonment and a special parole term of eight years on each count, to run concurrently. Appellant raises several claims of error, the most serious of which is that she was denied the effective assistance of counsel. Having determined that these claims are lacking in merit, we affirm.
BACKGROUND
In December, 1978, Gloria Aulet, an Argentinian citizen living in the United States as a resident alien, arrived at John F. Kennedy Airport on a flight from Bolivia. During a routine inspection at the airport, United States Customs Inspector James Cirigliano asked Aulet several questions and examined her luggage. Although the luggage revealed nothing unusual, statements made by Aulet apparently aroused Cirigliano’s suspicions and he decided that a search of her person was necessary. Cirigliano escorted Aulet to a private examination room and summoned a female Customs Inspector, Annette Artis. When Artis asked Aulet to disrobe, Aulet reached inside her clothing and removed two feminine napkins, stating, “Here it is.” Artis immediately turned the napkins over to Cirigliano. As they appeared to have something inside them, Cirigliano opened the napkins. Inside he discovered a white powder which he tested and found to be cocaine. Cirigliano arrested Aulet and read her the Miranda warnings in English. Although it was apparent that English was not her native language, Aulet stated that she understood Cirigliano.
Cirigliano’s supervisor summoned Special Agent Trustey of the Drug Enforcement Administration, who arrived at the examination room several minutes later. After reading Aulet her rights, again in English, Trustey had a short conversation with her, pursuant to which Aulet agreed to cooperate with the DEA Agent and to give him information about another courier who had accompanied her on the plane. Trustey thereupon called for an interpreter to facilitate further discussion. Aulet and the agents spent approximately six hours in the airport developing the details surrounding her trip to Bolivia, her return with the napkins, and the other participants in the venture. Testimony given at the subsequent trial indicated that during these conversations Aulet had admitted to traveling to Bolivia at the request of an acquaintance who promised to pay her four thousand dollars for successfully bringing two small packages into the United States.
After being assigned court-appointed counsel, Aulet pleaded not guilty and went to trial. Aulet did not deny that she had carried cocaine into the country. Instead her defense centered on the claim that she had lacked the requisite criminal intent. Aulet testified that she had believed she was carrying contraband, either gold or jewelry, and had not known or believed that she was carrying drugs, and she produced character witnesses who testified to her reputation for honesty and truthfulness. No motion was made before or during trial to suppress the evidence gathered during the search and questioning of Aulet at the airport.
On appeal Aulet, represented by a different attorney, alleges that she did not receive effective assistance of counsel at trial, that the evidence did not support a guilty verdict, that the district judge improperly excluded cooperation evidence, and that the jury was not properly charged on the issue of conscious avoidance.
DISCUSSION
1. The Record on Appeal
Before reaching the merits of Au-let’s claims, we note the difficulties encountered in addressing an issue which is raised for the first time on appeal, as is the ineffective assistance of counsel question in this case. Generally, an appellate court will not consider an issue that has not been presented to the court below. United States v. Hermann, 524 F.2d 1103, 1104 (2d Cir. 1975); United States v. Foddrell, 523 F.2d 86, 87 (2d Cir.), cert. denied, 423 U.S. 950, 96 S.Ct. 370, 46 L.Ed.2d 286 (1975). The usual method of challenging the effectiveness of defense counsel in a federal criminal trial is by a collateral attack on the conviction under 28 U.S.C. § 2255. See, e. g., United States v. Schreiber, 599 F.2d 534, 538 (3d Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (U.S. Oct. 2, 1979); United States v. Rodriquez, 582 F.2d 1015, 1016 (5th Cir. 1978) (per curiam); United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). When this path is taken, the district judge can, in an appropriate case, hold an evidentiary hearing and develop a full factual record before reaching a decision.
The value of proceeding in this way is amply demonstrated by the instant case. Aulet’s attack on trial counsel’s effectiveness is directed at the failure to move for suppression of the physical evidence and statements taken from Aulet at the airport during and subsequent to an allegedly illegal search. On a record completely devoid of any indication of trial counsel’s reasons for foregoing a suppression motion, Aulet has asked us to hold that the failure to make such a motion constituted a denial of Aulet’s Sixth Amendment right to counsel. On an equally barren record the government asks us to rule that there was no such denial of the right to counsel. With the case in this posture, it is difficult for either side to present to this Court the factual material that would be helpful in deciding whether Aulet should receive a new trial. Despite the general rule of forebearance, however, “[cjertainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt . . . or where ‘injustice might otherwise result.’ ” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). This is one of those rare cases. Because we believe that resolution of this issue is beyond any doubt and that a remand for further proceedings or a refusal to address the merits of the issue without prejudice to its being raised collaterally would be a waste of judicial resources, and because both sides ask us to decide the issue, we reach the merits of Aulet’s claim of ineffective assistance of counsel.
Before doing so, however, we must resolve the dispute that has arisen over what parts of the record before us we may properly consider. The notice of appeal in this case was filed on June 8, 1979, and the record on appeal was filed on July 19, 1979, and supplemented with trial transcripts on August 29, 1979. The government, after receiving appellant’s brief and learning that she was raising a claim of ineffective assistance of counsel, supplemented this record on October 11, 1979, adding “3500 material” which it had given to trial counsel before trial, but had never had occasion to introduce into evidence during the proceedings below. Appellant’s counsel made a motion to strike this second supplemental record on November 2, 1979, alleging that because it was not part of the trial record, it is not properly before this Court. The motion was denied, with assurances that this Court would not rest its decision on materials not properly in the record on appeal. It appears that appellant’s counsel objects to the inclusion of the 3500 material on the ground that she was unaware of its existence until she received the government’s brief in October of 1979. An examination of the trial transcript, however, reveals that the court below noted on the record that the government attorney had given the 3500 material to Aulet’s trial counsel at the beginning of the trial. Since the existence of this material and trial counsel’s access to it would have been disclosed by a simple reading of the transcript, appellant’s present counsel cannot now complain about her failure to have ascertained the contents of this potentially crucial material at an earlier stage in the appeal process.
Appellant maintains, however, that we should decide whether failure to move for a suppression hearing constituted inadequate assistance of counsel solely on the record below, without any consideration of the very materials which may have prompted trial counsel to forego such a motion. Appellant does not contest the fact that trial counsel had timely access to the 3500 material now before this Court but she strenuously objects to our considering the 3500 material itself in deciding the ineffective assistance of counsel issue. We see no justification in this case for ignoring these materials which bear heavily on the merits of appellant’s claim. Indeed, were we to do so, appellant would be in a stronger position than she would have been in had she raised the issue either below or collaterally and thus facilitated the creation of a proper factual record for our review. The 3500 material which appellant wishes to prevent us from considering includes the very materials a district judge would have examined in deciding a suppression motion, had one been made. In urging this Court to ignore this same evidence in deciding whether trial counsel’s failure to make a suppression motion constitutes ineffective assistance of counsel, appellant fails to suggest what principle of law or equity would be served by our thus shielding ourselves from the knowledge of what transpired below. Where anything material to a claim on appeal is omitted from the record, this Court, under authority of Rule 10(e), Fed.R. App.P., may, “on prqper suggestion or of its own initiative” direct that a supplemental record be certified and transmitted. See, e. g., Arnold Productions Inc. v. Favorite Films Corp., 291 F.2d 94, 96 (2d Cir. 1961); Gunther v. E.I. DuPont de Nemours & Co., 255 F.2d 710, 716 (4th Cir. 1958). See also National Nutritional Foods Ass’n v. FDA, 491 F.2d 1141, 1144 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974); Williams v. Pennsylvania R.R. Co., 313 F.2d 203, 209 (2d Cir. 1963). Thus, even if the government had not supplemented the record on appeal with the 3500 material, we could invoke our power to supplement the record by requiring transmission of that relevant evidence, and that exercise of our authority would be appropriate in light of the fact that both parties have urged us to resolve this matter. Accordingly, we reach our decision based on a consideration of the record on appeal as supplemented by the government.
2. Ineffective Assistance of Counsel
The standard for judging assistance of counsel in this Circuit was established in United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), and was recently upheld in Indiviglio. v. United States, 612 F.2d 624 (2d Cir. 1979):
[Ujnless the purported representation by counsel was such as to make the trial a farce and a mockery of justice, mere allegations of incompetency or inefficiency of counsel will not ordinarily suffice as grounds for the issuance of a writ of habeas corpus ....
A lack of effective assistance of counsel must be of such a kind as to shock the ■conscience of the Court and make the proceedings a farce and mockery of justice.
United States v. Wight, 176 F.2d at 379 (footnote and citations omitted). Aulet invites us to retreat from this standard and adopt the “reasonable competence” standard adhered to by several other circuits. Such reconsideration is not appropriate at this time. On the facts of this case we would reach the same conclusion under either standard.
We are satisfied that trial counsel would have risked little or nothing by making a motion to suppress the physical evidence seized and the statements made by Aulet at the time of her arrest and questioning. The government makes no claims to the contrary. But defense counsel is not required automatically to file a suppression motion in every case involving evidence or statements obtained after a search; rather, counsel must use “professional discretion in deciding whether there are sufficient grounds” for such a motion. LiPuma v. Commissioner, Department of Corrections, 560 F.2d 84, 93 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977). “To rule otherwise would go a long way towards affirmatively requiring defense counsel to file a suppression motion no matter how tenuous the grounds supporting it for counsel’s own protection if for no other reason.” Id. An examination of this Court’s decisions concerning failure to make various pretrial motions or trial objections demonstrates that we require a clear showing of inadequacy in counsel’s performance to justify overturning a conviction. In Li-Puma, holding that a failure to make a pretrial motion to suppress an identification, see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), was justified by facts in the record, we emphasized that claims of ineffective assistance must be premised on actual, not possible, prejudice to the client. 560 F.2d at 92. Compare United States v. Daniels, 558 F.2d 122, 126 (2d Cir. 1977) (failure to seek pretrial Wade hearing not ineffective assistance where no real basis to question identification) with Saltys v. Adams, 465 F.2d 1023, 1028 (2d Cir. 1972) (failure to request Wade hearing constituted ineffective assistance where highly viable Wade argument apparent). Similarly, in Indiviglio v. United States, supra, at 629, we held that counsel’s failure to raise a “presumably meritorious pretrial suppression motion” did not amount to inadequate assistance although the search warrants in question, which appeared valid on their face, were subsequently invalidated in a civil case. See also Bellavia v. Fogg, 613 F.2d 369, 374-75 (2d Cir. 1979); Twitty v. Smith, 614 F.2d 325, 333-35 (2d Cir. 1979).
As Aulet suggests, an evaluation of alleged ineffective assistance of counsel usually begins with an examination of the strength of the prosecutor’s case. United States v. Bubar, 567 F.2d 192, 202 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977); United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970). Viewed in the light of our recent international border search decisions, the case against Gloria Aulet appears strong. See United States v. Nieves, 609 F.2d 642 (2d Cir. 1979); United States v. Asbury, 586 F.2d 973 (2d Cir. 1978). In Asbury we set forth the requirements for a lawful border search that goes beyond a routine inspection, stating that the search must be reasonable and that in each case reasonableness should be determined by “weighing the warranted suspicion of the border official against the offensiveness of the intrusion.” 586 F.2d at 976. We listed several factors that might warrant a search: (1) excessive nervousness, (2) unusual conduct, (3) informant’s tip, (4) computerized information, (5) loose fitting or bulky clothing, (6) suspicious itinerary, (7) incriminating matter discovered through routine search, (8) lack of employment or claim of self-employment, (9) needle marks or other indications of drug addiction, (10) information from search or conduct of traveling companion, (11) inadequate luggage, and (12) evasive or contradictory answers. Id. at 977. Most recently, in United States v. Nieves, supra, we indicated that two of these factors, a suspicious itinerary and inadequate luggage, were sufficient to justify a search that included removing and drilling into the suspect’s shoes. Reaffirming that any decision to cross our nation’s borders fulfills the reasonableness requirement- of a routine search, this Court again relied on a balance between the offensiveness of the intrusion and the border official’s warranted suspicion in judging the propriety of the more extensive search challenged in Nieves.
The facts surrounding the search in the instant case were not elicited at trial due to trial counsel’s defense strategy. An examination of the 3500 material, however, clearly demonstrates that had a motion to suppress been made it would have been unsuccessful. Inspector Cirigliano, a customs inspector with five years of experience, testified that while he was searching Aulet’s luggage at the inspection station, Aulet made several statements to him which could have reasonably aroused his suspicions. Cirigliano stated in his report that Aulet seemed nervous and appeared bulky on her lower backside. Furthermore, Aulet’s name appeared on a list of possible smugglers Cirigliano had obtained from a computer while Aulet was going through Customs. In addition, Aulet’s passport revealed a recent trip to Colombia, a source country for the importation of cocaine. It is true that Cirigliano would have been subject to cross-examination at a suppression hearing. Nevertheless, even considering the evidence in the light least favorable to the government, we are constrained to find that trial counsel could reasonably have concluded that Cirigliano had a reasonable basis for conducting the search.
Because the search in this case was proper, we need not address Aulet’s challenge to the admission of certain evidence as “fruit of the poisonous tree.” We also regard as without merit Aulet’s objections on Fifth Amendment grounds to the admission of statements made during and after the search. Inspector Cirigliano and Agent Trustey read Aulet her rights in English and specifically asked if she understood, to which she responded in the affirmative. Additionally, an informative interview with Agent Trustey, conducted in English, occurred following these warnings. An interpreter who subsequently read the Miranda warnings in Spanish also inquired whether Aulet understood and received an affirmative answer. At trial Judge Mishler conversed with Aulet several times and commented that she spoke English “fairly well.” In addition, many of Aulet’s statements were admitted into evidence specifically to show that she made an immediate decision to cooperate with the authorities after her arrest. It is, therefore, apparent that Aulet made her statements voluntarily, and a suppression motion would have been futile.
Trial counsel adopted a strategy of attempting to convince the jury that although Aulet knew she was bringing something illegal into the country, she did not know that she was carrying cocaine. We are satisfied that for better or worse the decision not to file a suppression motion was based on the strength of the government’s case and the not untenable judgment that Aulet’s best defense was a denial of knowledge of the contents of the napkins. To establish this defense, trial counsel engaged in extensive direct examination of Aulet on the circumstances of the trip, her reasons for making the trip, and what she believed she was carrying. Trial counsel also elicited from each of the agents involved in the search testimony to the effect that Aulet had never acknowledged that she was carrying drugs.
We are reluctant to second guess matters of trial strategy simply because the chosen strategy has failed. The courts must allow trial counsel some latitude in deciding which pretrial motions are called for in a given case. United States v. Ritch, 583 F.2d 1179, 1182-83 (1st Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978). As we stated in United States ex rel. Cruz v. LaVallee, 448 F.2d 671, 679 (2d Cir. 1971), cert. denied, 406 U.S. 958, 92 S.Ct. 2064, 32 L.Ed.2d 345 (1972), “A lawyer must be able to determine questions of strategy during trial; and unless there are exceptional circumstances or unless the lawyer is so incompetent as to deprive the defendant of the right to effective assistance of counsel, his decision regarding trial strategy must be binding.” See also United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963). Aulet has simply failed to demonstrate that she was not adequately represented at trial. “As in so many cases of this type, the petitioner freely equates lack of success in his criminal defense with counsel incompetency, and illogically and irrationally blames his predicament, which is primarily of his own doing, upon the inability of counsel to extricate him. Appointed counsel who devotes his talent and his time in a helpful and not well compensated effort usually deserves better treatment than this.” Slawek v. United States, 413 F.2d 957, 958 (8th Cir. 1969) (Blackmun, Circuit Judge).
3. The Jury Charge
Aulet argues that the only possible premise for the verdict was a finding that Aulet consciously avoided learning the truth about the packages. She points to several alleged errors in the judge’s charge to the jury on the subject of conscious avoidance, claiming that they require reversal. The government maintains that the jury charge was correct and furthermore that the jury could have based its guilty verdict on a finding of actual knowledge of the napkins’ contents. Examining the charge as a whole, United States v. Bright, 517 F.2d 584, 588 (2d Cir. 1975), we find that Judge Mishler properly apprised the jury of the elements necessary to support a guilty verdict.
This Court has recognized that in cases where knowledge is an essential element, specific knowledge is not always necessary; rather, purposeful ignorance may suffice. United States v. Joly, 493 F.2d 672, 675 (2d Cir. 1974). See also United States v. Dozier, 522 F.2d 224, 226-27 (2d Cir.), cert. denied, 423 U.S. 1021, 96 S.Ct. 461, 46 L.Ed.2d 394 (1975). In Bright, supra, 517 F.2d at 587, we noted that a de fendant is entitled to instructions on the question of conscious avoidance that balance the “high probability” test of knowledge of a given fact with its negation by actual belief in the nonexistence of that fact. An examination of the recent case of United States v. Morales, 577 F.2d 769 (2d Cir. 1978), is helpful in determining the adequacy of conscious avoidance charges. In Morales we stated that the nature of the balancing language required would depend on the evidence in each case, while noting at the same time that in previous drug cases most charges required references to the defendant’s conscious avoidance and actual belief. 577 F.2d at 774 n.4. We also noted our approval of an instruction on conscious avoidance-drawn from the,Model Penal Code § 2.02(7) which “serve[s] to focus the jury’s attention on the extent of the defendant’s actual knowledge and to assure that a conviction is not based on mere negligence, foolishness or stupidity.” 577 F.2d at 775 n.6. The instruction referred to originated in United States v. Valle-Valdez, 554 F.2d 911 (9th Cir. 1977), where the Ninth Circuit found a charge deficient because it did not apprise the jury that conscious avoidance was culpable only if the defendant was aware of the high probability that he was transporting drugs. The principle to be gleaned from these cases is that a conscious avoidance charge must include references to a purposeful avoidance of the truth, Dozier, 522 F.2d at 227; an awareness of high probability, Morales, 577 F.2d at 774; and the absence of defendant’s actual belief in the nonexistence of the crucial fact, Bright, 517 F.2d at 587. All of these elements were present in Judge Mishler’s charge, and, therefore, there is no error.
4. Exclusion of Evidence; Sufficiency of Evidence
Finally, Aulet urges, contrary to her prior arguments about the suppression of her statements, that Judge Mishler erred when he refused to allow testimony revealing Au-let’s post-arrest statements which demonstrated her willingness to cooperate with DEA officials. After her arrest Aulet spent some six hours with officials in the airport discussing her venture and its various participants. She also attempted, unsuccessfully, to make a controlled delivery. Aulet’s trial counsel attempted to elicit the details of this cooperation during trial, but Judge Mishler excluded this evidence because it was not relevant to Aulet’s state of mind at the time of her arrest.
We dispose of Aulet’s contention by reference to two factors. First, evidence of Aulet’s decision to cooperate was admitted into evidence and the jury was given the opportunity to decide whether this decision was an indication that Aulet did not know she was carrying cocaine. The verdict demonstrates that the jury chose to believe that her decision to cooperate meant something other than ignorance, and we fail to see how the details of the cooperation could have changed this result.
Second, this Court is reluctant to overturn evidentiary rulings in the absence of an abuse of the district court’s broad discretion in these matters. 10 Moore’s Federal Practice 11401.03(6); 403.02(4) (2d ed. 1979). See, e. g., Hamling v. United States, 418 U.S. 87, 125-27, 94 S.Ct. 2887, 2911-12, 41 L.Ed.2d 590 (1974); United States v. Robinson, 560 F.2d 507, 514-16 (2d Cir. 1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); United States v. Corr, 543 F.2d 1042, 1051 (2d Cir. 1976).
Turning finally to the claim that the evidence below was insufficient to support the jury’s verdict and viewing the evidence in the light most favorable to the government, as we must, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), it is obvious that the jury could have found either that Aulet had actual knowledge that she was carrying cocaine or that she culpably and consciously avoided that knowledge.
The judgment of conviction is affirmed.
. Inspector Cirigliano testified that while he was inspecting Aulet’s suitcase she said, “Oh, you can rip that open. You can break that. I have nothing wrong. I have no . . . Cirigliano stated that although he was unsure whether or not Aulet had said “contraband,” he remembered that she had said she had nothing illegal in her suitcase. In view of the defense strategy there was no testimony as to whether or not Cirigliano’s suspicions were actually aroused by Aulet’s statements.
. At trial, Aulet was represented by assigned counsel from the Legal Aid Society. Assigned counsel apparently moved to be relieved from representation on appeal. Aulet appears before this Court with new counsel assigned pursuant to the Criminal Justice Act and as part of a program in Appellate Litigation at Hofstra Law School.
. This is not to say that the issue of ineffective assistance of counsel cannot be raised on direct appeal, i. e., after the denial of a motion for a new trial under Fed.R.Crim.P. Rule 33. Like the § 2255 procedure, this option makes possible the development of a factual record which can be made available to the appellate court if an appeal is taken.
. Section 3500 of Title 18 provides for the production of statements and reports made by government witnesses and in the government’s possession, after the witness has testified on direct examination. The transcript in the instant case demonstrates that the government turned these materials over to trial counsel at the beginning of trial.
. See note 1 supra.
. Aulet challenges, trial counsel’s judgment in failing to object to the admission of Aulet’s passport and the feminine napkins, arguing that the jury considered these items improperly. After considering the record, however, we must note that both trial counsel and Judge Mishler were careful to advise the jury that these items were of limited relevance. It is apparent that in view of the defense strategy trial counsel acted within the bounds of proper advocacy in not objecting to the admission of these items.
. Indeed, during the trial Judge Mishler commented on counsel’s trial experience and commended her for an excellent summation.
. Judge Mishler’s initial charge and his corrected charge read as follows:
The defendant, of course, argues with equal vigor that all those circumstances show only that she believed that it was gold or jewelry of some kind. But the Government is not required to prove beyond a reasonable doubt that she knew it was cocaine. If the Government proves beyond a reasonable doubt that the defendant was aware of the high probability that the substance he was carrying was a controlled substance, then the element of criminal knowledge shall have been proven. If the Government proves beyond a reasonable doubt that the defendant was aware of the high probability that the substance she was carrying was a controlled substance and deliberately refused to learn the facts, the Government shall have satisfied the burden of proving guilty knowledge, as I also use the term, criminal intent.
Proof of negligence or mistake or that the Government (sic) acted foolishly does not prove guilty knowledge. If you find that the defendant actually believed that she was carrying gold or gold jewelry, then, in effect, you shall have found that she was not aware of the high probability that it was a controlled substance, and, in that event, I direct that you find the defendant not guilty. ******
I misspoke when I was giving the charge about conscious avoidance to the deliberate refusal to look at the facts, when I said something about, “the Government acted foolishly.” I’m going to correct it. Of course, I wasn’t referring to actions by the Government. I was referring to what you might regard as actions by the defendant as being foolish; and so, when I charged that the Government could prove guilty knowledge by proving beyond a reasonable doubt that the defendant was aware of the high probability that the substance she was carrying was a controlled substance, I misspoke when I referred to proof that would be insufficient to prove guilty knowledge; and I said to you that, if all the Government proved was that the defendant was negligent or that she made a mistake or that the defendant acted foolishly, it does not prove guilty knowledge. I hope that corrects the misstatement I made.
Aulet’s attempt to assign error to Judge Mishler’s corrected charge is totally without merit; it is clear from the record that the Judge was simply correcting a misstated word, and trial counsel agreed with the restatement. .
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_genapel1 | H | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
DAY et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 6337.
Circuit Court of Appeals, Third Circuit.
Aug. 12, 1937.
Henry S. Drinker, Jr., Frederick E. S. Morrison, Calvin H. Rankin, C. A. McClure, and Drinker, Biddle & Reath, all of Philadelphia, Pa., for petitioners.
Harry Marselli, of Washington, D. C., James W. Morris, Asst. Atty. Gen., and Sewall Key, Norman D. Keller, and'Louise Foster, Sp. Assts. to Atty. Gen., for the United States.
Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.
BUFFINGTON, Circuit Judge.
Reference to the opinion of the Board of Tax Appeals, reported at 34 B. T. A.. 11, relieves us from restating the facts. The first question here involved is whether under the law of Pennsylvania the power reserved by the creator of the trust deeds of January 13, 1928, and November 1, 1929, to alter, amend, or revoke the trusts thereunder, was completely exhausted by his supplemental deeds of February 5 and May 5, 1931. The taxing .authorities contend that the power of the creator to alter, amend, or revoke, existed at the time of his death, while the taxpayer contends the said subsequent trust deeds constituted an exhaustion of the creator’s power to alter, amend, or revoke.
After argument and consideration had, we find ourselves in accord with the taxpayer’s contention. This view, supported by the long line of English cases, was held in this circuit in Hidell v. Girard Life Insurance Annuity & Trust Co., Fed.Cas.No.6464, also reported in 14 Phila.401, wherein Judge McKennan held: “There is high authority for the argument that a single exercise of a power of appointment or revocation exhausts the power. But where a power of revocation is once fully exercised, what is there left in the possessor of it, upon which a subsequent and.entirely inconsistent exercise of it can rest ?” In the present case the creator revoked, ended, and extinguished all interest in the trust estate, and thereafter and at the date of his death he had no part or lot therein. So holding, the order of the Tax Board is, therefore, reversed.
The second question involved is whether in the creator’s deed of trust of August 21, 1930, in favor of his minor daughter, the reserved power of alteration was exercisable by him at the date of his death or only after his minor daughter reached her majority. After argument and consideration, we are of opinion that up to the time of the creator’s death, which occurred during his daughter’s minority, he had no, present power to alter, amend, or revoke, and that the order of the Tax Board to the contrary should be reversed.
In accord with our holding, the record is remanded to the Tax Board, with instructions to exclude from taxation the subject-matter ' under the deed of trust dated January 13, 1928, the life estate of decedent’s mother under the deed of trust dated November 1, 1929, and the subject-matter of the deed of trust dated August 21, 1930, in which decedent’s daughter was the beneficiary, including the accretion to the latter effected by the supplemental deed of trust dated May 5, 1931, diverting one-third of the remainder in the trust of November 1, 1929 (the mother’s trust), to the trust for decedent’s daughter.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_direct1 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
BURKE et al., v. SANITARY DIST. OF CHICAGO et al.
Circuit Court of Appeals, Seventh Circuit.
April 8, 1929.
Rehearing Denied May 22, 1929.
No. 4020.
John M. Zane, of Chicago, Ill., for plaintiffs in error.
Morton S. Cressy and James M. Sheean, both of Chicago, Ill., for defendants in error.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
PAGE, Circuit Judge.
This aetion of ejectment, filed April 21, 1921, was brought by the devisees of James C. Burke, deceased, to recover lands taken by defendant, the Sanitary District of Chicago (herein called District), from John C. Burke and James C. Burke, in 1892 and 1893, through condemnation. The claim is that the District abandoned the lands in suit, and that plaintiffs, through the will of James C. Burke, deceased, own an undivided half interest therein in fee. An instructed verdict was returned for defendants.
The Sanitary District presents, in the main, two defenses: (a) That when it took the Burke lands it took them in fee, leaving no interest in Burke or his heirs; and (b) that in any event it has not abandoned the lands in question.
Whether, under the'statutes of its creation, the Sanitary District took the fee of lands it condemned was elaborately discussed by the late Judge Dibell, who for many years was a presiding judge of one of the Appellate Courts of Illinois, in an opinion which he delivered as judge of the Will county, Illinois, circuit court, in which he reached the conclusion that upon condemnation the Sanitary District took the fee. Upon appeal to the Supreme Court of Illinois, that court, while affirming the judgment of the circuit court, did'not pass on that question, but decided the case upon different grounds. Allen v. Haley, 169 111. 532, 48 N. E. 478. Other than this, we do not find that the question has been determined by the Illinois courts.
Our views on the question of abandonment make it unnecessary for us to decide the first proposition, and we refrain from discussing it.
The District was organized under a statute of the state of Illinois passed May 29, 1889. Sess. Laws Ill. 1889, p. 125 (3 Callaghan’s, Ill. St. Ann. c. 42, par. 337). The condemnation ease, appealed to the Supreme Court of Illinois, is found in Burke v. Saniitary District, 152 Ill. 125, 38 N. E. 670. Possession was taken in 1893, and in 1900 what is commonly known as the Chicago Drainage Canal was completed.
The Burke land, ^containing about 300 acres, is nearly a mile long, and at places about half a mile wide. Roughly speaking, it occupies, in width, all of the space between the Desplaines river, on the northwest side, and the Illinois and Michigan Canal, on the southeast side. It was low, swampy land, used solely for grazing. At the time of this trial, there were: In meadow and pasture, 40 acres; under cultivation, 58 acres; in mud flats, brush lands, and scattered timber, 98 acres; canal waters, 49 acres; other waters, 8 acres. The Drainage Canal runs through nearly the whole length of the Burke land, and its width, between designated dock lines, is 240 feet. It is sought to recover an undivided one-half of the land, except certain railroad rights of way, and except the strip occupied by said main channel, its prism, banks, and berm— a strip of land stated in the pleadings to be 296 feet wide. However, the actual width of the canal, from water’s edge to water’s edge, was 300 feet, and from the top of its banks, on either- side, its average width throughout was 365 feet. In the course of the construction of the canal, it became necessary to make, for some distance, a new channel for the Desplaines river. Prom the material excavated, large so-called spoil banks were made, and yet remain upon the Burke land. Some of them are between the channel of the Drainage Canal and the Illinois and Michigan Canal. One, on the northwest side of the Burke land, was placed with a view of strengthening the bank of the Desplaines river.
The acts of abandonment relied upon are as follows:
Platting. Lands on either side of the channel, from Robey street, in Chicago, to the Will county line, a distance of 20 miles, and claimed to be owned by the District, were platted into lots of various sizes. Beginning at Robey street, they were numbered from 1 to 274. It is not a statutory plat, and there is no dedication to the public of any street, alley, or other public place. There are legitimate purposes to be served by platting the lands into parcels and designating them by number. The fact of platting is no evidence of an intention to abandon.
Advertising. There was a sign near the Burke property, calling attention to desirable factory sites on the District right of way. The offer was to lease only, and did not mention the Burke property. An advertising prospectus is in the record, and there are reproduced on various pages thereof sections of the platted and numbered lots, beginning at Robey street, and covering all lots up to and including lot 133. Lots 132 and 133 are the only lots mentioned that are in the Burke property. Opposite the lot numbers are shown the appraised values of the tracts. That information was given to show the rental rates, the statement being: “The annual rental of each lot or tract is based on 5 per cent, of its appraised valuation.” We find no offer of sale, other than that relating to the material in some of the ■ spoil banks.
Leases. Leases are shown to three tenants for farming and grazing purposes. In each is reserved to lessee the right to cancel, on short notice. A lease to the Corn Products Manufacturing Company, for 99 years, is for a strip of land about 1,'500 feet long on the southeasterly side of the main channel and of the width of about 400 feet to the northeasterly line of the Illinois and Michigan Canal. The lease contains the following provision:
“The said lessor may at any time enter upon said premises for the purpose of widening its said main channel, and may at any time take so much of said premises as may be necessary for the widening of said main channel.”
There is the provision that lessee may take daily from the channel 25,000,000 gallons of water, provided it returns daily an equal- quantity. Lessee agrees to pay all water rates, taxes and special assessments levied upon the leased premises. The lease provides that lessee shall build and maintain a dock along the entire front of the leased property on the channel, in accordance with the Drainage District’s plans and specifications, and it also agreed to excavate, for one-half the entire width of the canal, under the direction of the District’s engineer, so as to deepen the channel to the grade originally established. It is further provided that the District shall have the right to erect poles on the south 40 feet of the strip and to maintain them for the purpose of carrying wires. There was also a provision that the lessee will.remove the spoil bank on the leased premises. All lessees are parties defendant.
“To constitute an abandonment there must be not only an actual relinquishment of the property, but an intention to abandon it. The intention of the party * * * is the important fact.” Chicago & E. I. R. Co. v. Clapp, 201 Ill. 418, 425, 66 N. E. 223, 225. See, also, Lindblom v. Rocks, 146 F. 660, 664 (9th C. C. A.).
Durfee v. Peoria, D. & E. Ry. Co., 140 Ill. 435, 30 N. E. 686, was a case of nonuser. The railroad company leased, for 10 years, the right to use a part of another railway company’s tracks, and thereupon ceased to use the tracks on the land in question. The rails and ties were taken up, and the land was fenced in with the land of the former owner, from whom it had been taken by condemnation, and who paid taxes on it. The evidence showed that the railroad company intended to resume the running of trains over the old right of way. The court said (page 439 [30 N. E. 687]):
“Under this evidence we perceive no ground whatever upon which it could be held that the railroad company had lost its right of way by abandonment.”
Clearly, wo think, there was nothing in the three leases to indicate abandonment. Wo shall consider the Corn Products lease further.
The act under which the District was formed is “An act to create Sanitary Districts, and to remove obstructions in the Desplaines and Illinois rivers.” Laws 1889, p. 126. Section 1 provides:
“That whenever any area of contiguous territory within the limits of a single county shall contain two or more incorporated cities, towns or villages, and shall be so situated that the maintenance of a common outlet for the drainage thereof will conduce to the preservation of the public health, the same may be incorporated as a sanitary district under this act. * * * No territory shall bo included in any municipal corporation formed hereunder which is not situated within the limits of a city, incorporated town or village, or within three miles thereof. * * * ”
Section 12 authorizes the trustees of the District to levy and collect taxes within the territorial limits of the District, and there are other provisions relating to taxation and special assessment. Although there is a limitation as to the territory that may be included and taxed in any district, there is a provision by which other territory may have the use of the channel on terms to be agreed upon. Section 20 provides:
“Any channel * * * which shall cause the discharge of sewage into or through any river or stream of water beyond or without the limits of the district * * * shall be of sufficient size and capacity to produce a continuous flow of water of at least two hundred cubic feet per minute for each one thousand of the population of the district drained thereby, and the same shall be kept and maintained of such size and in such condition that the water thereof shall be neither offensive or injurious to the health of any of the people of this state, and before any sewage shall be discharged into such channel or outlet all garbage, dead animals, and parts thereof, and other solids shall be taken therefrom.”
It is also provided that:
“If the population of the district draining into such channel shall at any time exceed 1,500,000, such channel shall be made and kept of such size and in such condition that it will produce and maintain at all times a continuous flow of not loss than 20,-000 cubic feet of water per minute for eaeh 100,000 of the population of such district. * « *»
There are many other important provisions in that section, giving authority to and placing burdens upon the District. Section 24 provides:
“When such channel shall bo completed, and the water turned therein, to the amount of 300,000 cubic feet of water per minute, •the' same is hereby declared a- navigable stream, and whenever the general government shall improve the Desplaines and Illinois rivers, for navigation, to connect with this channel, said general government shall have full control over the same for navigation purposes, but not to interfere with its control for sanitary or drainage purposes.”
It is provided that compliance with the act may be compelled by suits brought by the Attorney General, and the District is liable for damages to those wrongfully injured. Section 7 reads:
“The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as. may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner. * * * ”
Section 8 provides:
“Such sanitary district may acquire, by purchase, condemnation, or otherwise, any and all real and personal property, right of way and privilege, either within or without its corporate limits that may be required for its corporate purposes; * * * and, when not longer required for such purposes, to sell, convey, vacate and release the same, subject to the reservation contained in section 7, relating to water powers and docks.”
Various amendments have been made to the statute of 1889, and it is urged that some of them are unconstitutional because they embody an attempt to bestow upon the District, and empower it to dispose of, a greater title than was taken by condemnation. While the Legislature could not, by subsequent legislation, bestow upon the District any greater title than that taken on condemnation, yet it is lawful for a Legislature to place upon a municipality burdens, duties, and obligations incident to the general purpose of the original legislation. The original act in fact foreshadows the possibility of such legislation by providing in section 22:
“Nothing in this act contained shall be so construed as to constitute a contract or grant between the state of Illinois and any sanitary district formed under its provisions, or to prevent, debar or deprive the state of Illinois from, at any time in the future, altering, amending or repealing this act, or imposing any conditions, restrictions, or requirements other, different or additional to any herein contained upon any sanitary district which may be formed hereunder.”
When the land was condemned, ■ the Burkes had notice not only of the terms and conditions then imposed upon the District, but also had notice that the land was 'taken for such other purposes as might be imposed upon the District by the Legislature.
It is apparent that the obligations and duties that the District was required to meet at its inception were not the measure of thé obligations and duties that the District was, or might be, required by the act fo meet and perform during the years that were then before it, or during the years that are yet to come. The city of Chicago, which constituted most of the territory of the District when it was founded, then had 1,000,000 people. Since then the territory has been nearly doubled, and the people within it have trebled. The main channel extends from Robey street, in the city of .Chicago, "32 miles, through the counties of Cook and Will, to Joliet. The District is charged with the duty and responsibility of so taking care of the drainage and the sewage brought to it from the city of Chicago and other cities within its territory that the sewage will not be a menace either to the people of the District or to those using the waters of the Illinois and Desplaines rivers. It cannot now be told what lands or other property, what channels or other facilities,' will be necessary to enable the District tq carry out the obligations imposed upon it by law. The amount of land taken in condemnation was not contested by the Burkes, and they were awarded by the jury the full fair cash market value thereof, and it was paid by taxation of the people. There is no equitable reason why anything shown in the record should be held to be an abandonment, where it is clearly shown that there was an intent not to abandon the property.
It has always been contended by the District that it owns the fee in the Burke land. We do not decide this question, but the claim has. been apparently made in good faith, and that contention excludes any idea of intent to abandon. We have not overlooked the fact that in some eases intent may be presumed from the nature of the acts done.
The evidence in this case, taken ahout 25 years after the opening of the channel, shows that at that time there was 11 feet of sediment and sewage in its bottom, nearly one-third of its total depth. It seems probable that, unless the sediment is removed, the channel will soon lack the depth necessary for either drainage or navigation. One of the things required of the Corn Products Manufacturing Company, under its lease, was that it should excavate, to its original depth, one-half of the channel in front of the property leased. Whether excavated by the Corn Products Manufacturing Company or by the District itself, there is nothing in the record from which we can tell that the land in question will not be needed in the future, as it was at the time of the original excavation, for the economic disposition of the excavated material.
The record does not show the kind and character of docks required by the lease to be constructed by the Corn Products Manufacturing Company. There is nothing from which wo can determine whether all of the land covered by the lease will be required for the purposes reserved therein to the lessor: (1) The right to ereet poles and wires on a 40-foot strip along the Illinois and Michigan Canal; (2) the right to use any necessary part of the leased land for the purpose of widening the channel. Nor can it be known bow much of the land will be necessary to enable the lessee to construct and maintain docks, required by the lease. The Supreme Court of Ohio said: “A dock is a place for vessels, either excavated from the land, or surrounded by wharves.” Bing-ham v. Doane, 9 Ohio, 165, 167. On one of the exhibits there are shown many U-shaped slips, extending out from the Chicago river. It is a matter of common knowledge that docks are so constructed that vessels may be brought within the slips for loading and unloading. While docks so constructed increase the water line and enable vessels to be unloaded and loaded outside the main channel, they at the same time greatly increase the width of the land necessary for their construction. So far as we know from the record, the construction indicated above may be the construction required by the lease. One of the plats shows a sewer from Argo across the leased property, emptying into the channel. Although this is a 99-year lease, we do not think that, under all the circumstances, it was improperly made. To lease docks and sell power, to widen the channel, or to construct additional channels are matters not limited as to time. But, if it can be said that the lease to the Corn Products Company is one beyond the power of the District to make, yet as the District was established to meet a great public necessity, at great expense to the people, it should not be held that a wrongful use by tbe District of a part of its property amounts to abandonment, particularly where such use, as here shown, is intimately connected with the purposes covered by the statute.
Ordinarily, the question of abandonment is for the jury, but where, as we conclude to be the case here, the evidence, with all the inferences fairly to be drawn therefrom, is insufficient to show abandonment, there may and should be a directed verdict for the defendant.
The judgment is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_genresp2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
INTERSTATE COMMERCE COMMISSION, Appellee, v. George T. APPLEYARD, III, and James W. Cain, Appellants.
No. 74-1342.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 4, 1974.
Decided April 3, 1975.
Norman B. Smith, Greensboro, N. C. (Smith, Carrington, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appellants.
J. Preston Proffitt, Jr., Regional Counsel, Interstate Commerce Commission (Bernard A. Gould and Robert S. Turk-ington, Attys., Interstate Commerce Commission, on brief), for appellee.
Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
BUTZNER, Circuit Judge:
In order to test the constitutionality of the Interstate Commerce Commission’s policies regulating interstate truck transportation, George T. Appleyard and James W. Cain deliberately violated Part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq. The district court enjoined them from further violations, as provided in 49 U.S.C. § 322. Appleyard and Cain appeal the injunction on the ground that the I.C.C.’s application of the Act deprives them of liberty without due process of law. We affirm the district court and deny them relief because they have not shown that Appleyard would be unlawfully refused an operating permit were he to seek one.
The facts are simple. Except for businesses hauling their own goods and carriers of unprocessed farm products, every carrier of goods by truck in interstate commerce must have either a permit or a certificate of convenience and necessity issued by the I.C.C. 49 U.S.C. §§ 303(b)(7) and (c), 306(a), 309. Apple-yard, an independent truck owner who hauls farm products, and Cain, the editor of a magazine for truckers, contracted for Appleyard to carry a load of chipboard from North Carolina to Washington, D. C. Appleyard, who has neither a certificate nor a permit, carried the load and then reported the trip to the I.C.C., which subsequently obtained the injunction.
Appleyard and Cain do not claim that the permit requirements of Part II of the Interstate Commerce Act are facially unconstitutional. Instead, they argue that the present criteria for permits irrationally restrict Appleyard’s liberty to engage in interstate trucking. In support of this contention, they presented expert testimony, mostly uncontradicted, to the effect that the present policy of restricted entry and limited competition favors established carriers over newcomers, leads to extravagant overcapacity, requires empty backhauls, increases operating costs, wastes fuel, and causes excessive freight .rates.
Appleyard and Cain urge that by not instituting a policy of free entry and price competition, the I.C.C. has injured both the public and small truckers without corresponding public benefits and that it has failed to follow the statutory National Transportation Policy, which controls its discretion. Since, in their view, the present operating permit system is of no public benefit and is beyond the I.C.C.’s authority, they assert that Appleyard cannot be enjoined to comply with it. Despite the appellants’ economic arguments, we affirm the district court for two reasons.
In the first place, the record does not show that Appleyard has ever been or would be refused an operating permit, or indeed that he has ever applied for one. Appleyard concedes that Congress may require permits for interstate motor carriers. Since he does not attack the statute as unconstitutional on its face, we cannot presume that a request for a permit would be futile. Until he has shown that he cannot obtain a permit under the existing regulations, he has suffered no legally cognizable injury from this injunction. Lehon v. Atlanta, 242 U.S. 53, 37 S.Ct. 70, 61 L.Ed. 145 (1916); see Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 75 L.Ed. 1264 (1931) (dictum).
Secondly, the federal courts will not review legislation or administrative action on the basis of their views of reasonable economic policy. North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). The appellants’ reliance on United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973), and United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), is misplaced. These cases do not review legislative policy objectives. Instead, they test the procedural due process of implementing policy by utilizing certain statutory presumptions. Appleyard’s claim is no more than a contention that the public would be better off if the I.C.C. modified its control of interstate motor transportation. This may well be true. Congress, however, has given the Commission the authority to reconcile the overlapping and conflicting goals of the National Transportation Policy. See Schaffer Transportation Co. v. United States, 355 U.S. 83, 92, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957).
Affirmed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_casetyp1_7-3-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
John W. WILLIAMS, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
No. 73-2898
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 28, 1973.
Rein J. Vander Zee, Kerrville, Tex., for plaintiff-appellant.
Robert B. Summers, Claude B. Masters, San Antonio, Tex., for defendant-appellee.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409; Part I.
PER CURIAM:
This suit in diversity arose from an automobile collision between plaintiff-appellant Williams and Lewis Charles Elliott, who was driving a car owned by his employer, Westinghouse. At the time of the accident, not only was Elliott engaged in a personal errand, he was on an extended medical leave from Westinghouse. The lower court correctly concluded that Elliott was not acting within the course and scope of his employment, and it found no evidence of negligence on Westinghouse’s part in connection with Elliott’s use of the company car. Accordingly, the court granted summary judgment for Westinghouse. We affirm.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer: |
songer_respond2_8_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Thomas W. TREAKLE, Jr., Robert M. Baum, Jr., A. D. Willis, Jr., B. S. Lupton, Fred L. Ebner, Joseph W. Morgan, Charles H. Richardson, Charles E. Johnson, and Andrew A. Midgette, Appellants, v. POCAHONTAS STEAMSHIP COMPANY, owner and/or operator of the STEAMSHIP CONSOLIDATION COAL, in personam, and the Steamship Consolidation Coal, her tackle, apparel, furniture, boilers, engines, machinery, in rem, and Marine Coal Transport Corporation, owner and/or operator of the STEAMSHIP MARINE ELECTRIC, in personam, and the Steamship Marine Electric, her tackle, apparel, furniture, boilers, engines, machinery, etc., in rem, Appellees.
No. 12289.
United States Court of Appeals Fourth Circuit.
Argued Oct. 29, 1968.
Decided Jan. 15, 1969.
Henry E. Howell, Jr., Norfolk, Va. (Howell, Anninos & Daugherty, Norfolk, Va., on brief), for appellants.
Charles R. Dalton, Jr., Norfolk, Va. (Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellees.
Joseph L. Kelly, Jr., Norfolk, Va. (Williams, Worrell, Kelly & Worthing-ton, Norfolk, Va., on brief), for Norfolk and Western Railway Co.
Hugh S. Meredith, Norfolk, Va. (Van-deventer, Black, Meredith & Martin, Norfolk, Va., on brief), for Coal Terminal Towing Corp.
Before BOREMAN and BUTZNER, Circuit Judges, and McMILLAN, District Judge.
PER CURIAM:
The appellants, Treakle and others, a group of tugboat pilots employed by Coal Terminal Towing Corporation and its predecessors, filed a libel against Pocahontas Steamship Company, in per-sonam, and the steamship “CONSOLIDATION COAL” in rem. Subsequently appellants filed a similar libel against Marine Coal Transport Corporation, in personam, and the steamship “MARINE ELECTRIC” in rem. Exceptions and/or exceptive allegations were seasonably filed by the vessel owners and testimony was taken in support of the exceptions. The two cases were consolidated for trial and upon appeal.
The sole question for determination is whether these tugboat pilots are entitled, in the circumstances, to claim compensation from the owners of oceangoing vessels which were docked or undocked by the tugboats and their pilots at Coal Piers and to assert a lien against such vessels for specialized services as “docking” pilots in addition to their compensation fixed by a contract negotiated by and between their employers and their union bargaining representative. The district court sustained the exceptive allegations and held that the tugboat pilots, by their course of dealing over a protracted period, and by their contractual arrangements are effectively estopped from asserting a claim for services as docking pilots against the owners of the docked vessels or a lien for such services against the vessels themselves.
We have carefully examined the record and conclude that the consolidated cases were correctly decided for the reasons stated by the district court in its memorandum opinion.
Affirmed.
. Pursuant to the terms of their negotiated employment contract the tugboat pilots, in addition to their hourly wage rate, received $8.50 per day “to cover the service of docking and undocking ships” at Coal Piers when so assigned. Similarly the mates of tugboats assigned to docking and undocking ships at Coal Piers received $2.87 for each day so assigned, in addition to their hourly wage rate.
. Treakle v. Pocahontas Steamship Company, 278 F.Supp. 608 (E.D.Va.1967).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer: |
songer_district | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Denise BENCE, et al., Plaintiffs-Appellants, v. DETROIT HEALTH CORPORATION, et al., Defendants-Appellees.
No. 81-1632.
United States Court of Appeals, Sixth Circuit.
Argued March 14, 1983.
Decided July 11, 1983.
Rehearing and Rehearing En Banc Denied Sept. 19,1983.
Evelyn F. Forrest, James M. Radabaugh (argued), Troy, Mich., for plaintiffs-appellants.
Timothy Carroll (argued), Detroit, Mich., for defendants-appellees.
Before ENGEL, Circuit Judge, WEICK, Senior Circuit Judge, and BALLANTINE, U.S. District Judge.
The Honorable Thomas A. Ballantine, Jr., United States District Judge for the Western District of Kentucky, sitting by designation,
WEICK, Senior Circuit Judge.
Plaintiffs-Appellants Denise Bence, et al., have appealed to this court from a judgment in the United States District Court for the Eastern District of Michigan, Southern Division, in favor of their employer, Detroit Health Corporation, defendant-appellee in their action, asserting a claim for violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1). Jurisdiction was based on 28 U.S.C. § 1331. For the reasons hereinafter stated, we reverse.
Plaintiffs-Appellants (“employees”) are former employees of Detroit Health Corporation (“employer”). At all relevant times employer operated a chain of health spas, each of which was divided into a men’s division and a women’s division which operated on alternate days. Men operated the men’s division and women operated the women’s division. Employer’s managers and assistant managers were paid, except for a six month period in 1975, by commissions based on gross sales of memberships. Male managers were paid 7.5% of the individual spa’s gross sales of memberships to men. Female managers were paid 5% of gross sales of memberships to women. Male assistant managers received 4.5% of gross sales to men. Female assistant managers received 3% of gross sales to women.
Over the course of employer’s life, the gross volume of membership sales to women was 50% higher than the gross volume of membership sales to men. There was no difference in the job descriptions of male and female managers or assistant managers and they performed their jobs under similar working conditions. The total remuneration received by males and females was substantially equal although the females made more sales than the males.
Employees filed suit, contending that the different commission rates violated 29 U.S.C. § 206(d)(1), which provides:
No employer having employees subject to any provision of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to the employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production, or (iv) a differential based on any other factor other than sex[.]
The employer contended that it did not violate this section because it paid different commission rates so that men and women would be paid substantially equal compensation for equal work performed.
The district court found the differential in commission rates established a prima facie case of wage discrimination and shifted to employer the burden to justify the differential. After analyzing the meaning of “wages” and “wage rate”, the court found that § 206(d) focuses on equal wage rates and rejected employer’s argument that the differential was justified because total remuneration was substantially equal. The court found, however, that “it is easier to sell memberships to women than to men” and that this brings employer within exception (iv) to § 206(d). The district court granted summary judgment for employer and employees appealed. This court held that material issues of fact existed with respect to the claim of justification and summary judgment improperly resolved a disputed issue of material fact, and remanded for further findings of fact and conclusions of law. 657 F.2d 266 (6th Cir.1981).
Upon remand, the district court conducted a bench trial at which the parties agreed that employees established their prima facie case and directed proofs toward employer’s defense. The district court found:
[Defendants are engaged in a business in which there are more potential female customers than male and in which history has demonstrated conclusively that the membership breakdown will be sixty percent female and forty percent male. In short, defendants have shown by a preponderance of the evidence that a male manager and a female manager, sitting at the same desk in the same spa and expending the same amount of effort, under totally equal conditions, will have a net sales result of six membership sales to females and four membership sales to men. This is not to suggest that on a one-to-one basis a sale to a potential woman customer is any easier than a sale to a male customer. To the degree that this court’s opinion on the summary judgment motion referenced easier sales to women, it was not intended to be a qualitative analysis but a quantitative one. There are simply more potential female customers in a consistent ratio of 60/40 and, with the same expenditure of effort, male and female managers will produce sales figures resulting in a 60/40 female/male membership. The net result of this is that, since the commission rates of seven and one-half percent for men and five percent for females are pegged to this same ratio, female and male managers at the same location will make, for all practical purposes, the same salary. To the degree that there are differentials, as many times as not the female manager will make more money than her male counterpart. The defendants have thus, based upon figures that have been conclusively proved to be historically accurate, seized upon a system for equalizing pay rather than having established a system which is discriminatory in a manner violative of the Equal Pay Act. It is understandable that a woman manager would feel that she has an argument for making more money than her male counterpart. This would be true if the commission system were thrown out and managers were paid identical salaries. Undoubtedly, the female managers would point to the fact that they are generating more memberships than their male counterparts as an argument in support of a larger salary. The Equal Pay Act, however, only commands equal pay for equal work. It does not command an employer to give absolute numerical recognition to the balance-sheet significance of the equal work efforts of male and female employees. (Appendix 19-20)
The court concluded that employer’s commission system was protected by exception (iii) and/or (iv) to § 206(d) and entered judgment accordingly.
I.
Employees appeal from the foregoing judgment. Both parties advance the same arguments they presented to the district court. Employer admitted at oral argument that there was no difference between the memberships its employees sold to men and women. In this posture, this case presents two issues: (1) whether employer did not violate § 206(d)(1) because its commission differential provided male and female employees with substantially equal total remuneration; (2) whether employer’s commission differential is protected by one or more of the four exceptions to § 206(d)(1).
Employer’s “equal total remuneration” argument fails. Inequality of pay is an element of an equal pay plaintiff’s prima facie case. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974); see generally Sullivan, The Equal Pay Act of 1963: Making and Breaking a Prima Facie Case, 31 Ark.L.Rev. 545, 547-83 (1978). Employer conceded, and the district court properly found, that employees established their prima facie case. Section 206(d)(1) commands an equal rate of pay for equal work. Comparison of pay rates entails measuring the amount of pay against a common denominator, typically a given time period or quantity or quality of output. Consequently, it is necessary to identify the proper factor by which to measure rate of pay. This must be a practical inquiry which looks to the nature of the services for which an employer in fact compensates an employee.
Under certain circumstances, there might be merit in employer’s “equal total remuiteration” argument if it paid its employees on the basis of hours spent in its health clubs or for satisfactory performance of a host of specified duties, of which selling memberships was merely one element. Under such a system, total compensation would be based on total service to employer’s clientele. This could entail equal “skill, effort, and ... responsibility” despite the fact that female employees work harder selling memberships because potential female health club members outnumber potential male members.
That is not the case here. The record contains some evidence to support the conclusion that employees were more than glorified membership sellers. The job description for Manager and Assistant Manager stated that they were “completely responsible for the entire job operation,” including personnel and bookkeeping functions (Appendix 260). They were also responsible for the duties of Instructors and Assistant Manager Trainees, who kept records, instructed and assisted spa members, and supervised cleaning personnel (Appendix 257-59).
There is far more evidence that employees’ primary function was to sell memberships. Employer’s job description stated that the progress and compensation of all its employees was “controlled by [their] ‘PRODUCTION’,” meaning “sales effectiveness” (Appendix 257). The specific job description for each grade of employee focused heavily on sales (Appendix 257-60). The record contains uncontradicted testimony that employer routinely fired managers who failed to meet its sales “goals” (Appendix 230-31). This evidence led the district court to find:
[T]he life blood of the spa industry is the continued sale of memberships. It is for this reason that managers are compensated entirely on a commission basis. Although managers do have supervisory responsibilities for their spa employees, it is clear that they are instructed and fully realize that their primary responsibility is for the continued sale of memberships. Top management closely monitors the sale efforts of each spa location and, in the event that there is any significant statistical departure from what history has demonstrated should be the sales results, it is a red flag to management that something is amiss at that particular location.
(Appendix 20). This court accepts this finding and concludes that employees were paid solely on the basis of memberships sold rather than overall service rendered to employer.
Evaluation of employer’s compensation on a “per sale” basis makes it apparent that it paid female managerial personnel at a lower rate than their male counterparts. This is precisely what the Equal Pay Act forbids. Since employer does not otherwise contest employee’s prima facie case, it can escape liability only if its discriminatory commission system is protected by one or more of the four exceptions to § 206(d)(1).
II.
Sexually discriminatory compensation does not violate § 206(d)(1) if “payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex [.]” The district court concluded that employer’s wage differential was justified under exception (iii) because earnings were tied to membership sales, or under (iv) because a difference in the size of the markets for male and female health club members is a “factor other than sex” within the meaning of the Equal Pay Act. We disagree.
A.
The following general principles govern application of the exceptions to § 206(d)(1). The Equal Pay Act was intended as a “broad charter of women’s rights in the economic field. It sought to overcome the age-old belief in women’s inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it.” Shultz v. American Can Company— Dixie Products, 424 F.2d 356, 360 (8th Cir. 1970). The Act should be construed and applied to achieve this broad remedial purpose. Corning Glass Works v. Brennan, supra, 417 U.S. at 208, 94 S.Ct. at 2234. Courts should not sanction practices which “would frustrate, not serve, Congress’ ends.” Id.
Exceptions (i) through (iii) are specific examples illustrating the “broad principle” set forth in exception (iv). County of Washington v. Gunther, 452 U.S. 161, 170-71 n. 11, 101 S.Ct. 2242, 2248-49, n. 11, 68 L.Ed.2d 751 (1981). All four exceptions are affirmative defenses which, in essence, “authorize” an employer to differentiate in pay between sexes. Id., at 169, 101 S.Ct. at 2247. Once a plaintiff establishes a prima facie case under § 206(d)(1), the burden shifts to the employer to prove by a preponderance of the evidence that its compensation system is justified by one or more of the four exceptions. Corning Glass Works v. Brennan, supra, at 196-97, 94 S.Ct. at 2229. This burden is a “heavy one.” Equal Emp. Opportunity Com’n v. Whitin Machine Works, Inc., 635 F.2d 1095, 1098 (4th Cir. 1980); Brennan v. Owensboro — Daviess County Hospital, 523 F.2d 1013, 1031 (6th Cir.1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2170, 48 L.Ed.2d 796 (1976). An employer cannot avail itself of any of the exceptions to § 206(d)(1) unless it proves that “the factor of sex provides no part of the basis for the wage differential.” Id., at 1031, citing 29 C.F.R. § 800.142 (1974).
. B.
We think it plain that employer’s compensation system is not protected by exception (iii), which exempts “a system which measures earnings by quantity or quality of production.” The “quantity” test refers to equal dollar per unit compensation rates. There is no discrimination if two employees receive the same pay rate, but one receives more total compensation because he or she produces more. In the instant case, women had to produce more to be paid the same as men. The “quality” test is not met because it was not easier to sell memberships to women than to men, and there was no difference between the memberships employer offered to men and women. Any other result would undermine the purpose of the Equal Pay Act by allowing employers to pay women lower incentive rates than men for the same work.
C.
A troublesome aspect in this case is whether employer’s commission differential is a “factor other than sex” within the meaning of exception (iv). The issue is whether the phrase “any other factor other than sex” means literally any other factor, a factor traditionally used in job evaluation systems, or something else. The legislative history of the Equal Pay Act suggests Congress intended exception (iv) to include factors other than traditional job evaluation criteria. Referring to § 206(d)(l)(i) through (iv), the committee report on an Equal Pay Act precursor (H.R. 6060) stated:
Three specific exceptions and one broad general exception are also listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded. It also recognizes certain special circumstances, such as “red circle rates.” This term is borrowed from War Labor Board parlance and describes certain unusual, higher than normal wage rates which are maintained for many valid reasons. For instance, it is not uncommon for an employer who must reduce help in a skilled job to transfer employees to other less demanding jobs but to continue to pay them a premium rate in order to have them available when they are again needed for their former jobs.
H.R.Rep. 309, 88th Cong., 1st Sess. 3, reprinted in Staff of House Comm, on Education & Labor, Legislative History of the Equal Pay Act of 1963, 88th Cong., 1st Sess. 44 (1963). During debate in the House, Rep. Griffin observed:
I should like to focus the attention of the gentlemen upon small roman numeral iv ... which makes clear and explicitly states that a differential based on any factor or factors other than sex would not violate this legislation. In other words, even though jobs involve the same skill, equal effort, equal responsibility, and are performed under the same working conditions, if there is any other factor not based on sex upon which a differential is based, then no violation of this law can be found. Roman numeral iv is a broad principle, and those preceding it are really examples: such factors as a seniority system, a merit system, or a system which measures earnings on the basis of quality or quantity of production. The other body saw fit to leave out references in the bill to a merit system, a system which measures earnings on the basis of quality, and quantity, and a seniority system, and included only the broad language found in roman numeral iv of our bill. However, it should be clear that under either bill a wage differential based upon any factor other than sex is not a violation.
109 Cong.Rec. 9203 (1963). See also 109 Cong.Rec. 9198 (1963) (remarks of Rep. Thompson); Id. 9206 (remarks of Rep. Goo-dell).
Few courts have addressed this problem explicitly. Employer relies on Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 50, 38 L.Ed.2d 85 (1973), for the proposition that exception (iv) is not restricted to factors traditionally included in job-evaluation systems, but encompasses any non-sexual factor pertinent to an employer’s business judgment on how to run its business. In that case, an employer maintained separate men’s and women’s clothing departments staffed by salesmen and saleswomen respectively. The men’s department produced more profit than the women’s department because men’s clothing was more expensive and had a higher markup than women’s clothing. The employer contended that intimate contact between sales clerks and customers made it necessary to segregate male and female clerks, and that higher profit in the men’s department justified its practice of paying higher incentive wages to salesmen than to saleswomen. Based on the foregoing legislative history, the court agreed on both counts. The holding of Robert Hall is that “economic benefit” may be a “factor other than sex” within the meaning of exception (iv). Read broadly, Robert Hall may stand for the proposition that any non-sexual factor based on an employer’s legitimate business judgment may be a “factor other than sex” within the meaning of exception (iv).
In County of Washington v. Gunther, supra, 452 U.S. at 170-71 n. 11, 101 S.Ct. at 2248-49 n. 11, the Supreme Court observed that Congress added exception (iv) “because of a concern that bona fide job evaluation systems used by American businesses would otherwise be disrupted” by the Equal Pay Act. Two courts have .interpreted this as limiting exception (iv) to factors traditionally included in job-evaluation schemes. Schulte v. Wilson Industries, Inc., 547 F.Supp. 324, 339 n. 16 (S.D.Tex.1982); Kouba v. Allstate Insurance Co., 523 F.Supp. 148, 161 (E.D.Cal.1981), rev’d, 691 F.2d 873 (9th Cir.1982). In Kouba, the Ninth Circuit rejected this conclusion and adopted the Robert Hall “legitimate business reason” test for the scope of exception (iv). Id., at 867-77.
In the instant case, employer seeks to bring itself within the Robert Hall rule. It argues that a legitimate business policy of providing male and female employees equal total remuneration justifies a commission differential because the market for women’s memberships is larger than the market for men’s memberships. Employer cannot avail itself of the Robert Hall “economic benefit” rule because women managers provided more profit than their male counterparts, not less. Equal Emp. Opportunity Com’n v. Hay Associates, 545 F.Supp. 1064, 1084 (E.D.Pa.1982). Moreover, unlike Robert Hall, in the instant , case there is no difference between the product sold by male and female employees.
We do not deem it necessary to decide whether a difference in the size of markets for men’s and women’s memberships alone justifies employer’s commission differential. Without passing on the propriety of segregating male and female employees into men’s and women’s departments, we believe that such segregation plus application of a lower commission rate only to those who sold memberships to women effectively locked female employees, and only female employees, into an inferior position regardless of their effort or productivity. Since the lower commission rate could apply only to women, we do not believe employer has proved that “sex provided no part of the basis for the wage differential.” Brennan v. Owensboro — Daviess County Hospital, supra, at 1031. Cf. 29 C.F.R. § 800.116(e) (1982) (commission differential between departments acceptable if potentially applicable to men and women).
Today’s holding is a narrow one. We do not hold that an employer may not under any circumstances segregate male and female employees into separate departments and pay them different rates of wages. Nor do we endorse or reject the broad reading of § 206(d)(l)(iv) set forth in Robert Hall and Kouba. Those are questions for another day. We hold only that an employer may not avail itself of the affirmative defense under § 206(d)(l)(iv) where it compensates male and female employees solely for selling the exact same product, only female employees can be compensated at a lower commission rate, and the differential is not justified by any difference in economic benefit to the employer. Under the facts of this case, this result is necessary to effectuate the broad remedial purpose of the Equal Pay Act.
Accordingly, the judgment below is reversed and this case is remanded to the district court for further proceedings in conformity with this opinion.
. For reasons not relevant to this case, this ratio changed during the last six months of 1975 so that the number of memberships sold to men and women were equal. During that time male managers received a salary of $1,000 per month plus 3% of gross sales of memberships to men, female managers received a salary of $1,000 per month plus 2% of gross sales of memberships to women, male assistant managers received a salary of $600 per month plus 1.5% of gross sales of memberships to men, and female assistant managers received a salary of $600 per month plus 1% of gross sales of memberships to women (Appendix 283).
. The Wage and Hour Division of the Department of Labor considers the term wage “rate” used in § 206(d)(1) to encompass “all rates of wages whether calculated on a time, piece, job, incentive or other basis.” 29 C.F.R. § 800.111 (1982).
. Employer’s reliance on Bullock v. Pizza Hut, Inc., 429 F.Supp. 424 (M.D.La.1977), is misplaced. In that case, the court found the defendant unlawfully discriminated against a female restaurant manager by paying her a lower base salary than males received, even though her salary plus bonus was equal to or greater than that paid to male managers. The court rejected a challenge to the defendant’s bonus system because it was based solely on profit and loss statements; it did not hold that equal total remuneration precludes an Equal Pay Act violation.
. Maintenance of a commission differential when the traditional 60/40 ratio of membership sales to women and men broke down in 1975 renders suspect employer’s claimed goal of compensating its male and female managerial. employees equally. This fact alone may not prove employer had an evil motive, but it does undermine the contention that the commission differential was designed solely to offset the 60/40 sales ratio.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_appel1_1_3 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
ZELCO, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 6245.
United States Court of Appeals First Circuit.
May 11, 1964.
David Burstein, Boston, Mass., with whom Robert J. Richards, Jr., and Hale & Dorr, Boston, Mass., were on brief, for petitioner.
Steven Shapiro, Attorney, Department of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson and David O. Walter, Attorneys, Department of Justice, were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is a petition by Zelco, Inc., for review of a decision of the Tax Court of the United States, entered July 30, 1963, determining deficiencies in petitioner’s federal income tax liabilities for its taxable years ended August 31, 1959 and 1960.
The facts were stipulated. Petitioner, a New Hampshire corporation, is engaged in the business of leasing trailers and tractors to St. Johnsbury Trucking Company, Inc., an interstate motor carrier subject to the jurisdiction of the Interstate Commerce Commission. The shares of stock of petitioner and of St. Johnsbury are at least 95 percent owned by three individual stockholders who are brothers.
Petitioner purchases the trailers and tractors new from the manufacturer. Bach trailer and tractor when purchased comes equipped with new tires, each trailer having eight wheels and eight tires and each tractor having six wheels and six tires. The average useful life of new tires on trailers and tractors is twelve months. The useful life of the trailers and tractors are five and six years respectively.
Petitioner leases its vehicles only to St. Johnsbury. All leases executed in the fiscal years ended August 31, 1956, 1957 and 1960 were for a period of one year, and in each lease the lessee was given three successive options to extend the term of the lease for additional periods of one year. During these years the lessee exercised its option to extend the term of the leases. In accordance with the requirements of the Interstate Commerce Commission, the leases were executed following an invitation for public bids and were approved by the Commission.
Paragraph 4 of the lease agreements provided as follows:
“The Lessee agrees that it will, at its own expense, during the term specified in Paragraph 1 and any extension thereof, maintain the leased equipment in good operating condition and repair and will furnish all such tires, tubes, accessories and parts as may be required-, provided, however, that in the event that any of the leased equipment shall, in its opinion, be rendered unfit for further use in its business by reason of damage or destruction, it will, at its option, forthwith (a) replace the same with equipment of like kind and in substantially the same condition as such leased equipment was immediately prior to its damage or destruction, or (b) purchase such leased equipment from the Lessor at its value immediately prior to such damage or destruction, such value to be determined on the basis of its initial cost to the Lessor less depreciation thereon on a four-year straight line basis.” (Italics supplied.)
The tires on the trailers and tractors are interchanged at the discretion of the lessee, St. Johnsbury, in accordance with the usual practice of motor carriers to do so for the purpose of prolonging the useful life of the tires.
For federal income tax purposes, petitioner followed the practice of writing off the cost of the new tires ratably over a period of twelve months. In doing so, petitioner relied on W. H. Tompkins Co., 47 B.T.A. 292 (1942) and Revenue Ruling 59-249,1959-2 Cum.Bull. 55 in which the Internal Revenue Service acquiesced in the Tompkins decision. The Ruling provides' that:
“The cost of tires and tubes purchased on new commercial trucking equipment and used in motor freight transportation is deductible as ordinary and necessary business expense in full in the taxable year of purchase and payment (or accrual) if in such use they are consumable within that year or their average useful life is less than one year even though it extends in part into the next year.”
Respondent disallowed the deduction and insisted that the tires could not be separated from the vehicles but had to be depreciated as part of and over the useful life of the vehicles. The revenue agent’s report stated that “Revenue Ruling 59-249 which provides the only exception to the general rule that tires are part of the vehicle and not a separate asset * * * is not applicable and * * the deduction for tire expense would not be allowable.” The reasons given for the Ruling’s inapplicability were: “1. The taxpayer is in the business of leasing trucks and not the motor transportation business. 2. The cost of tires is not a recurring expense. The lease stipulates that the cost of replacing tires must be borne by the lessee.” Accordingly, respondent restored the cost of the new tires to the cost bases of the equipment.
On appeal to the Tax Court, it was held that the loss of the tires occurred ratably over the life of the lease as extended and should be taken as depreciation over such period. The W. H. Tompkins case and Revenue Ruling 59-249 were distinguished:
“In Tompkins it may perhaps be said that the owner of the trucks actually sustained the loss of the original tires during the first year. Here, in view of the lessee’s obligation to replace tires, petitioner’s loss is the diiference between the cost of its new equipment and the value of that equipment when returned to it at the termination of the lease; but, as far as petitioner is concerned, that loss occurred ratably over the life of the lease as extended and should be taken as depreciation over such period. It did not occur in one year, and to allow a deduction for such loss to be spread over only one year would in fact distort petitioner’s income.”
The question here is whether petitioner-lessor must wait until the termination of a lease extending up to four years, as the Tax Court held, before realizing its full deduction when the asset involved admittedly possessed a useful life of only twelve months. Respondent contends that petitioner cannot take the deduction during the first year of the lease because throughout the full term of the lease, petitioner continued to receive a rental based upon petitioner’s “providing new equipment to the lessee, tires as well as trucks and trailers” at the inception of the lease. Also, the fact that the lessee replaced the tires meant that petitioner had to make “no further outlay in order to derive the originally fixed income for the term of the lease.”
W. II. Tompkins, supra, established the principle that when the useful life of a rapidly consumable and substantial asset, there specifically tires, has been completed, the taxpayer should be able to regain his costs during the period of that useful life without having to wait until the more endurable vehicle to which the tires were attached has reached the end of its usefulness. In that case the taxpayer was a freight cai-rier by motor vehicle operating its own motor vehicle equipment. It deducted the cost of the new tires with which the motor vehicles were initially acquired as a business expense in the year of acquisition. The Commissioner opposed this deduction contending that the tires were capital items and the normal income tax method of accounting could not be ignored. The Tax Court, however, concluded at 47 B.T.A. 294 that “to depreciate tires which will be worn out in six months over a period of seven to ten years which, at a rough guess, is the possible life of the trucks, seems a manifest absurdity, and by denying the full deduction of their cost in the year of purchase as an expense, we should, in effect, distort petitioner’s income for that year.”
In the instant case the tires were fully worn out within twelve months from the inception of the lease. The lessee was then obliged to “furnish all such tires, tubes, accessories and parts as may be required” for the successive terms for which the lease was to be extended. The vehicles would then be returned to petitioner with tires having only a nominal or salvage value. But due to the fact that after the tires were exhausted petitioner would continue to receive income for the use of the vehicles pursuant to the terms of the lease, it was held that petitioner would have to wait until the full term of the lease had expired before he could receive his full depreciation for the tires.
We believe this view gives an undue importance to the lease when in reality the lease is almost irrelevant to the question before us. It- is the useful life of the leased property rather than the duration of the lease that should be the determining factor in computing depreciation of the property. Lamson Bldg. Co. v. Commissioner of Internal Revenue, 141 F.2d 408 (6th Cir. 1944) . See Treas.Reg. § 1.167(a)-4 (last sentence). In addition, a lessor may receive a depreciation deduction over the property’s useful life although the lessee is charged with the repair, replacement and maintenance of that property. Alaska Realty Co. v. Commissioner of Internal Revenue, 141 F.2d 675 (6th Cir. 1944) ; Terminal Realty Corporation 32 B.T.A. 623 (1935); see Rev.Rul. 62-8, 1962 Int.Rev. Bull. That the leases were extended by St. Johnsbury and thus the rental for the vehicles continued for three successive terms cannot change the fact that the tires were fully worn out within twelve months from the inception of the lease and under Tompkins petitioner realized a depreciable loss at that time. To hold, therefore, that regardless of the uselessness of the tires, so long as the vehicles themselves were earning income under the lease petitioner would not have yet suffered a loss as to the tires, ignores the right of petitioner as a lessor to recover its costs over the useful life of the leased property, Lamson Bldg. Co. v. Commissioner of Internal Revenue, supra, and erroneously concentrates upon the provision in the lease requiring the lessee to replace the worn out tires. Alaska Realty Co., supra; North Carolina Midland Railway Co. v. United States, 143 Ct.Cl. 30, 163 F.Supp. 610 (1958).
The Tax Court’s position is further difficult to uphold due to the fact that one cannot tell how long a lease of the type used by petitioner is going to be. When this was put to government counsel his reply was that the taxpayer must make an initial “realistic determination” of how long the lease was going to last. This seems anything but realistic and quite impractical. How much does the taxpayer depreciate at the end of the first year ? If the lease has been renewed it knows it will last at least two years. But does it take one-half, one-quarter, or one-third? This “determination” can be a heavy, if not impossible, burden to the taxpayer, especially as it is the taxpayer’s responsibility “to establish the reasonableness of the deduction for depreciation claimed.” Treas.Reg. § 1.167 (b)-(o) (a).
Finally, the Tax Court considered Tompkins an “extreme case” and stated that it would not be extended. But all that was “extreme” in Tompkins was the realization that a part of the cost of an asset may be capitalized and a part deducted as a business expense. The Tompkins view was followed by the Tax Court in Interstate Truck Service, Inc., T.C.Mem. 1958-219, and was finally adopted by the Internal Revenue Service in Revenue Ruling 59-249, although limiting its application to a taxpayer engaged in the business of motor freight transportation. The reasons for the limitation, if any, are not given and the dividing line seems to have been arbitrarily drawn. See Portland General Electric Company v. United States, 189 F.Supp. 290 (D.Ore.1960), aff’d per curiam, 310 F.2d 877 (9th Cir. 1962). The recognized fact that tires are “easily separable and are not a part of the truck’s mechanism, closely interrelated with other parts and affected by those parts in their wear and tear” and have a far shorter life than the vehicle itself is as true for a leased truck as it is for one that is not leased. Therefore, we can see no valid reason why the lessor in this case should not be allowed the same deduction as was allowed in Tompkins. The mere fact that one personally engages in motor freight transportation and the other leases the vehicles which are used in such business does not seem to be a decisive factor. The same type of asset is involved in both cases and an equal loss is suffered by both owners at the end of the useful life of the asset. See Commissioner of Internal Revenue v. Moore, 207 F.2d 265, 268 (9th Cir. 1953), cert. denied, 347 U.S. 942, 74 S.Ct. 637, 98 L.Ed. 1091 (1954). Certainly a lessor is just as capable of owning an asset with depreciable components (tires) as is any other owner. Cf. Herbert Shainberg, 33 T.C. 241 (1959).
A judgment will be entered vacating the decision of the Tax Court and remanding the ease to that court for further proceedings not inconsistent with this opinion.
. “There is intrinsic fairness in basing depreciation upon the single standard of useful life, if we are right in concluding that such standard is, under the regulations, alone applicable. Should the tenant default and the lessor repossess the property, he has not been deprived of his full measure of depreciation allowance, and in the case of a short term lease, the Treasury is not deprived of revenue by an inordinate depreciation rate during the term of the lease. On the other hand, if a new building replaces the old, after invested capital lias been fully recovered by depreciation deductions, its value or so much of it as remains after the expiration of a long term lease, is doubtless a gain to the lessor under applicable rules.” Id. 141 F.2d at 410.
. “ * * * Capital expenditures made by a lessor for the erection of buildings or other improvements shall, if subject to depreciation allowances, be recovered by him over the estimated life of the improvements without regard to the period of the lease.”
. It is interesting to note that under the authority of Rev.Rul. 59-249, supra, St. Johnsbury here could have deducted the costs of at least three sets of tires during the four year term of the lease while petitioner would not have yet recovered the cost of the original tires.
. W. H. Tompkins, supra, 42 B.T.A. at 295.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
INTERNATIONAL PAPER CO. v. MADDOX.
No. 14296.
United States Court of Appeals Fifth Circuit.
April 3, 1953.
Rehearing Denied May 6, 1953.
H. M. Holder, Shreveport, La., Geo. T. Madison and E. F. Madison, Bastrop, La., John H. Tucker, Jr., Shreveport, La., for appellant.
R. H. Lee, Benton, La., for appellee.
Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.
HOLMES, Circuit Judge.
This is an action by the appellee for temporary and permanent damages resulting to his property and his established fishing business by a continuing nuisance, maintained by the appellant in the operation of its paper mill in Webster Parish, Louisiana. He alleges that the effluent refuse matter from said mill drains into Bodcau Bayou; that this enormous quantity of waste water, aggregating about 12,000 gallons per minute, contains chemicals, ■fibrous matter, and other impurities, which completely destroy all plant and aquatic life in said bayou; and that the water therein, in consequence, -has become devoid of oxygen, highly odorous, and unfit for fishing purposes, private or commercial. The court below awarded damages to the plaintiff, but denied an injunction restraining the defendant from any further operation of the mill. From this judgment the defendant appealed.
The appellant’s specifications of error include the defense of a general denial that it has created or is maintaining any nuisance, and the pleas of release, estoppel, prescription, res judicata, excessiveness of damages, and accord and satisfaction. In ruling on the motion for a new trial, the court below said: “A steady fight, inch by inch, is made by the defendant company. It has zealous, persistent, and eminent counsel * * *. In [this] the second case we are doing for the defendant what its representatives have yet failed to do, and that is to pay Mr. Maddox once and for all. The defendant has so worked, by its sedimentation plans and manner of controlled discharge, that there is still fishing in Bodcau, but it is spotty and principally at the dam; importantly, it is distasteful fish to many for eating. Commercial fishing (buffalo) is practically extinct. If the fishing now were permanently and totally destroyed, we should be allowing the plaintiff at least $20,000, and not the sum of $5000. We have done our best. Of course, neither side is satisfied.”
This action follows an earlier suit between the same parties, which is reported in Maddox v. International Paper Co., D.C., 47 F.Supp. 829; the same trial judge heard both cases. After the rendition of the judgment in the first case, the plaintiff and defendant therein entered into an agreement under the terms of which the defendant (appellant here) paid the plaintiff (ap-pellee here) the amount of the judgment awarded by the lower court, plus the additional sum of $3000 for “any damages that might thereafter arise up to and including December 31, 1946.” Plaintiff also granted the defendant (appellant herein) “full flow-age rights across any and all property” owned by him, real and personal, “with full acquittance and release of any damages caused thereby up to and including December 31, 1946.” After the expiration of the above period, the appellee on May 19, 19-48, filed the present suit. In it he seeks permanent damages for the total destruction of his fishing camp and fishing business, loss of improvements, loss of value of camp sites, loss of profits for the years 1947 and 1948, and other items.
We think the plea of res judicata is not well taken. The pollution and its causes are recurrent or continuing nuisances; and actions for such temporary successive injuries from pollution are independent of one for pollution that is permanent in character. The first and second suits her tween these litigants are based upon separate causes of action, the first being for damages to appellee’s business resulting from pollution within the then prescriptive period, and the instant suit being for permanent damages for its total destruction. There is a difference between a claim for total temporary damages and one for total permanent damages. The lower court so interpreted the appellee’s demands, and the parties themselves recognized the distinction in the compromise settlement and release for three successive years ending December 31, 1946.
There is a maxim that one is so to use his own as not to injure another’s property (Sic utere tuo ut alienum non laedas). It must be applied harmoniously with the maxim of De minimis non curat lex, but there is no question of the latter in- this case; and the appellee had the right to presume that the appellant would abate this nuisance at the earliest practicable moment. This presumption was strengthened by the. defendant’s plea that it was engaged in continuous research for the purpose of controlling the waste disposal and reducing the waste content of the water discharged from its mills. During the war years (as claimed) it was unable to get delivery of certain needed equipment, but within the last three years it had secured this equipment and was completing the installation thereof, which greatly improved the situation, adding: “Respondent is continuing to make improvements” (R. 22).
The appellee alleged and the court below found that the first knowledge he had that the condition had become permanent was when appellant filed certain instruments by various owners on Bodcau Bayou granting flowage rights. It was stipulated that about 48 such instruments were filed, the first of these dating back to recordation on April 16, 1948. If appellant was still experimenting and spending considerable sums of money tp solve its waste .problems, the appellee could not have been expected to foresee the failure of these attempts. The recordation of these flowage easements constituted his first knowledge of apparent permanency, and this suit was filed May 19, 1948. The trial court did not err in refusing to apply a prescription date that would completely ignore the hopes and plans of all parties concerned for correcting the conditions as soon as materials became available.
The doctrine of res judicata in Louisiana is found in Art. 2286 of the LSA-Civil Code of Louisiana, which is as follows: The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. The Louisiana doctrine is much more restricted than at common law. State ex rel. etc. v. City of New Orleans, 169 La. 365, 125 So. 273. Its scope is defined and limited by statutory declaration. Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Smith v. Little Pine Lumber Co., 150 La. 720, 91 So. 165. It is stricti juris, and any doubt as to the identity of the two claims must be resolved in favor of the plaintiff. Bullis v. Town of Jackson, 203 La. 289, 14 So.2d 1, citing Hope v. Madison, 194 La. 337, 193 So. 666. See also Carter Oil Co. v. Jackson, 194 Okl. 621, 153 P.2d 1013.
The record in this case consists of five large volumes. It not only contains the judgment appealed from, but various long forms of requested judgments which the judge failed or refused to sign. After a patient hearing, the trial judge wrote the reasons for his decision in what seems to us to be a very sound opinion. We find no reversible error in anything that he said or did, and the judgment appealed from is affirmed. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Shannon v. Shaffer Oil & Ref. Co., 10 Cir., 51 F.2d 878, 78 A.L.R. 851; Iselin v. C. W. Hunter Co., 5 Cir., 173 F.2d 388; International Paper Co. v. Busby, 5 Cir., 182 F.2d 790; Maddox v. Int. Paper Co., D.C., 47 F.Supp. 829; Busby v. International Paper Co., D.C., 86 F.Supp. 603; Busby v. International Paper Co., D.C., 95 F.Supp. 596; Woodcock v. Baldwin, 110 La. 270, 34 So. 440; Smith v. Little Pine Lumber Co., 150 La. 720, 91 So. 165; State ex rel. Puritan Co., v. City of New Orleans, 169 La. 365, 125 So. 273; Bullís v. Town of Jackson, 203 La. 289, 14 So.2d 1; Chamberlain v. Bruce Fur. Co., La.App., 29 So.2d 183; Durmeyer v. Streiffer, 215 La. 585, 41 So.2d 226; Carter Oil Co. v. Jackson, 153 P.2d 1013, 194 Okl. 621; 54 C.J.S., Limitations of Actions, § 169-c, p. 132; Am.Jur., Vol. 15, page 414, Sec. 23; LSA-Civ.Code, Art. 1934; LSA-Civ.Code, Art. 2286.
Affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_appel1_8_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
V. E. B. CARL ZEISS, JENA, Steelmasters, Inc. and Ercona Corporation, Appellants, v. Ramsey CLARK, Acting Attorney General of the United States, Appellee.
No. 20351.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 14, 1967.
Decided May 8, 1967.
Certiorari Denied Nov. 13, 1967.
See 88 S.Ct. 334.
Mr. Harry I. Rand, Washington, D. C., for appellants.
Mr. John C. Eldridge, Atty., Dept, of Justice, with whom Messrs. David G. Bress, U. S. Atty., and Alan S. Rosenthal, Atty., Dept, of Justice, were on the brief, for appellee.
Before Edgerton, Senior Circuit Judge, and Burger and Wright, Circuit Judges.
JUDGMENT
PER CURIAM.
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.
On consideration whereof it is ordered and adjudged by this Court that the order of the District Court, appealed from in this cause be, and it is hereby, affirmed for the reasons stated in Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, D.D.C., 40 F.R.D. 318 (1966).
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer: |
sc_issue_2 | 20 | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
Michael J. BIESTEK, Petitioner
v.
Nancy A. BERRYHILL, Acting Commissioner of Social Security
No. 17-1184
Supreme Court of the United States.
Argued December 4, 2018
Decided April 1, 2019
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Alisa B. Klein, Rachel F. Homer, Attorneys, Department of Justice, Washington, D.C., for Respondent.
Frederick J. Daley, Jr., Meredith Marcus, Daley Disability Law, PC, Chicago, IL, Ishan K. Bhabha, Natacha Y. Lam, Lauren J. Hartz, Jenner & Block LLP, Washington, DC, for Petitioner.
Justice KAGAN delivered the opinion of the Court.
The Social Security Administration (SSA) provides benefits to individuals who cannot obtain work because of a physical or mental disability. To determine whether an applicant is entitled to benefits, the agency may hold an informal hearing examining (among other things) the kind and number of jobs available for someone with the applicant's disability and other characteristics. The agency's factual findings on that score are "conclusive" in judicial review of the benefits decision so long as they are supported by "substantial evidence." 42 U.S.C. § 405(g).
This case arises from the SSA's reliance on an expert's testimony about the availability of certain jobs in the economy. The expert largely based her opinion on private market-survey data. The question presented is whether her refusal to provide that data upon the applicant's request categorically precludes her testimony from counting as "substantial evidence." We hold it does not.
I
Petitioner Michael Biestek once worked as a carpenter and general laborer on construction sites. But he stopped working after he developed degenerative disc disease, Hepatitis C, and depression. He then applied for social security disability benefits, claiming eligibility as of October 2009.
After some preliminary proceedings, the SSA assigned an Administrative Law Judge (ALJ) to hold a hearing on Biestek's application. Those hearings, as described in the Social Security Act, 49 Stat. 620, as amended, 42 U.S.C. § 301 et seq. , are recognizably adjudicative in nature. The ALJ may "receive evidence" and "examine witnesses" about the contested issues in a case. §§ 405(b)(1), 1383(c) (1)(A). But many of the rules governing such hearings are less rigid than those a court would follow. See Richardson v. Perales , 402 U.S. 389, 400-401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). An ALJ is to conduct a disability hearing in "an informal, non-adversarial manner." 20 CFR § 404.900(b) (2018) ; § 416.1400(b). Most notably, an ALJ may receive evidence in a disability hearing that "would not be admissible in court." §§ 404.950(c), 416.1450(c); see 42 U.S.C. §§ 405(b) (1), 1383(c)(1)(A).
To rule on Biestek's application, the ALJ had to determine whether the former construction laborer could successfully transition to less physically demanding work. That required exploring two issues. The ALJ needed to identify the types of jobs Biestek could perform notwithstanding his disabilities. See 20 CFR §§ 404.1560(c)(1), 416.960(c)(1). And the ALJ needed to ascertain whether those kinds of jobs "exist[ed] in significant numbers in the national economy." §§ 404.1560(c)(1), 416.960(c)(1) ; see §§ 404.1566, 416.966.
For guidance on such questions, ALJs often seek the views of "vocational experts." See §§ 404.1566(e), 416.966(e); SSA, Hearings, Appeals, and Litigation Law Manual I-2-5-50 (Aug. 29, 2014). Those experts are professionals under contract with SSA to provide impartial testimony in agency proceedings. See id. , at I-2-1-31.B.1 (June 16, 2016); id. , at I-2-5-48. They must have "expertise" and "current knowledge" of "[w]orking conditions and physical demands of various" jobs; "[k]nowledge of the existence and numbers of [those jobs] in the national economy"; and "[i]nvolvement in or knowledge of placing adult workers[ ] with disabilities[ ] into jobs." Id. , at I-2-1-31.B.1. Many vocational experts simultaneously work in the private sector locating employment for persons with disabilities. See C. Kubitschek & J. Dubin, Social Security Disability Law & Procedure in Federal Court § 3:89 (2019). When offering testimony, the experts may invoke not only publicly available sources but also "information obtained directly from employers" and data otherwise developed from their own "experience in job placement or career counseling." Social Security Ruling, SSR 00-4p, 65 Fed. Reg. 75760 (2000).
At Biestek's hearing, the ALJ asked a vocational expert named Erin O'Callaghan to identify a sampling of "sedentary" jobs that a person with Biestek's disabilities, education, and job history could perform. Tr. 59 (July 21, 2015); see 20 CFR §§ 404.1567(a), 416.967(a) (defining a "sedentary" job as one that "involves sitting" and requires "lifting no more than 10 pounds"). O'Callaghan had served as a vocational expert in SSA proceedings for five years; she also had more than ten years' experience counseling people with disabilities about employment opportunities. See Stachowiak v. Commissioner of Social Security , 2013 WL 593825, *1 (E.D. Mich., Jan. 11, 2013) ; Record in No. 16-10422 (ED Mich.), Doc. 17-13, p. 1274 (resume). In response to the ALJ's query, O'Callaghan listed sedentary jobs "such as a bench assembler [or] sorter" that did not require many skills. Tr. 58-59. And she further testified that 240,000 bench assembler jobs and 120,000 sorter jobs existed in the national economy. See ibid.
On cross-examination, Biestek's attorney asked O'Callaghan "where [she was] getting those [numbers] from." Id. , at 71. O'Callaghan replied that they came from the Bureau of Labor Statistics and her "own individual labor market surveys." Ibid. The lawyer then requested that O'Callaghan turn over the private surveys so he could review them. Ibid. O'Callaghan responded that she wished to keep the surveys confidential because they were "part of [her] client files." Id ., at 72. The lawyer suggested that O'Callaghan could "take the clients' names out." Ibid. But at that point the ALJ interjected that he "would not require" O'Callaghan to produce the files in any form. Ibid. Biestek's counsel asked no further questions about the basis for O'Callaghan's assembler and sorter numbers.
After the hearing concluded, the ALJ issued a decision granting Biestek's application in part and denying it in part. According to the ALJ, Biestek was entitled to benefits beginning in May 2013, when his advancing age (he turned fifty that month) adversely affected his ability to find employment. See App. to Pet. for Cert. 19a, 112a-113a. But before that time, the ALJ held, Biestek's disabilities should not have prevented a "successful adjustment to other work." Id. , at 110a-112a. The ALJ based that conclusion on O'Callaghan's testimony about the availability in the economy of "sedentary unskilled occupations such as bench assembler [or] sorter."Id. , at 111a (emphasis deleted).
Biestek sought review in federal court of the ALJ's denial of benefits for the period between October 2009 and May 2013. On judicial review, an ALJ's factual findings-such as the determination that Biestek could have found sedentary work-"shall be conclusive" if supported by "substantial evidence." 42 U.S.C. § 405(g) ; see supra , at 1151. Biestek contended that O'Callaghan's testimony could not possibly constitute such evidence because she had declined, upon request, to produce her supporting data. See Plaintiff's Motion for Summary Judgment in No. 16-10422 (ED Mich.), Doc. 22, p. 23. But the District Court rejected that argument. See 2017 WL 1173775, *2 (Mar. 30, 2017). And the Court of Appeals for the Sixth Circuit affirmed. See Biestek v. Commissioner of Social Security , 880 F.3d 778 (2017). That court recognized that the Seventh Circuit had adopted the categorical rule Biestek proposed, precluding a vocational expert's testimony from qualifying as substantial if the expert had declined an applicant's request to provide supporting data. See id. , at 790 (citing McKinnie v. Barnhart , 368 F.3d 907, 910-911 (2004) ). But that rule, the Sixth Circuit observed in joining the ranks of unconvinced courts, "ha[d] not been a popular export." 880 F.3d at 790 (internal quotation marks omitted).
And no more is it so today.
II
The phrase "substantial evidence" is a "term of art" used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South , LLC v. Roswell , 574 U.S. ----, ----, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains "sufficien[t] evidence" to support the agency's factual determinations. Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." Ibid. ; see, e.g. , Perales , 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison , 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko , 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
Today, Biestek argues that the testimony of a vocational expert who (like O'Callaghan) refuses a request for supporting data about job availability can never clear the substantial-evidence bar. See Brief for Petitioner 21-34. As that formulation makes clear, Biestek's proposed rule is categorical, rendering expert testimony insufficient to sustain an ALJ's factfinding whenever such a refusal has occurred. But Biestek hastens to add two caveats. The first is to clarify what the rule is not, the second to stress where its limits lie.
Biestek initially takes pains-and understandably so-to distinguish his argument from a procedural claim. Reply Brief 12-14. At no stage in this litigation, Biestek says, has he ever espoused "a free-standing procedural rule under which a vocational expert would always have to produce [her underlying data] upon request." Id. , at 2. That kind of rule exists in federal court: There, an expert witness must produce all data she has considered in reaching her conclusions. See Fed. Rule Civ. Proc. 26(a)(2)(B). But as Biestek appreciates, no similar requirement applies in SSA hearings. As explained above, Congress intended those proceedings to be "informal" and provided that the "strict rules of evidence, applicable in the courtroom, are not to" apply. Perales , 402 U.S. at 400, 91 S.Ct. 1420 ; see 42 U.S.C. § 405(b)(1) ; supra , at 1152. So Biestek does not press for a "procedural rule" governing "the means through which an evidentiary record [must be] created." Tr. of Oral Arg. 6; Reply Brief 13. Instead, he urges a "substantive rule" for "assess[ing] the quality and quantity of [record] evidence"-which would find testimony like O'Callaghan's inadequate, when taken alone, to support an ALJ's factfinding. Id. , at 12.
And Biestek also emphasizes a limitation within that proposed rule. For the rule to kick in, the applicant must make a demand for the expert's supporting data. See Brief for Petitioner i, 5, 18, 40, 55; Tr. of Oral Arg. 25-26. Consider two cases in which vocational experts rely on, but do not produce, nonpublic information. In the first, the applicant asks for the data; in the second, not. According to Biestek, the expert's testimony in the first case cannot possibly clear the substantial-evidence bar; but in the second case, it may well do so, even though the administrative record is otherwise the same. And Biestek underscores that this difference in outcome has nothing to do with waiver or forfeiture: As he acknowledges, an applicant "cannot waive the substantial evidence standard." Id. , at 27. It is just that the evidentiary problem arises from the expert's refusal of a demand, not from the data's absence alone. In his words, the testimony "can constitute substantial evidence if unchallenged, but not if challenged." Reply Brief 18.
To assess Biestek's proposal, we begin with the parties' common ground: Assuming no demand, a vocational expert's testimony may count as substantial evidence even when unaccompanied by supporting data. Take an example. Suppose an expert has top-of-the-line credentials, including professional qualifications and many years' experience; suppose, too, she has a history of giving sound testimony about job availability in similar cases (perhaps before the same ALJ). Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the ALJ and the applicant's lawyer. And nothing in the rest of the record conflicts with anything she says. But she never produces her survey data. Still, her testimony would be the kind of evidence-far "more than a mere scintilla"-that "a reasonable mind might accept as adequate to support" a finding about job availability. Consolidated Edison , 305 U.S. at 229, 59 S.Ct. 206. Of course, the testimony would be even better-more reliable and probative-if she had produced supporting data; that would be a best practice for the SSA and its experts. And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar. The point is only-as, again, Biestek accepts-that expert testimony can sometimes surmount that bar absent underlying data.
But if that is true, why should one additional fact-a refusal to a request for that data-make a vocational expert's testimony categorically inadequate? Assume that an applicant challenges our hypothetical expert to turn over her supporting data; and assume the expert declines because the data reveals private information about her clients and making careful redactions will take a fair bit of time. Nothing in the expert's refusal changes her testimony (as described above) about job availability. Nor does it alter any other material in the record. So if our expert's opinion was sufficient-i.e. , qualified as substantial evidence-before the refusal, it is hard to see why the opinion has to be insufficient afterward.
Biestek suggests two reasons for that non-obvious result. First, he contends that the expert's rejection of a request for backup data necessarily "cast[s her testimony] into doubt." Reply Brief 16. And second, he avers that the refusal inevitably "deprives an applicant of the material necessary for an effective cross-examination." Id. , at 2. But Biestek states his arguments too broadly-and the nuggets of truth they contain cannot justify his proposed flat rule.
Consider Biestek's claim about how an expert's refusal undercuts her credibility. Biestek here invokes the established idea of an "adverse inference": If an expert declines to back up her testimony with information in her control, then the factfinder has a reason to think she is hiding something. See id. , at 16 (citing cases). We do not dispute that possibility-but the inference is far from always required. If an ALJ has no other reason to trust the expert, or finds her testimony iffy on its face, her refusal of the applicant's demand for supporting data may properly tip the scales against her opinion. (Indeed, more can be said: Even if the applicant makes no demand, such an expert's withholding of data may count against her.) But if (as in our prior hypothetical example, see supra , at 1154 - 1156) the ALJ views the expert and her testimony as otherwise trustworthy, and thinks she has good reason to keep her data private, her rejection of an applicant's demand need not make a difference. So too when a court reviews the ALJ's decision under the deferential substantial-evidence standard. In some cases, the refusal to disclose data, considered along with other shortcomings, will prevent a court from finding that "a reasonable mind" could accept the expert's testimony. Consolidated Edison , 305 U.S. at 229, 59 S.Ct. 206. But in other cases, that refusal will have no such consequence. Even taking it into account, the expert's opinion will qualify as "more than a mere scintilla" of evidence supporting the ALJ's conclusion. Which is to say it will count, contra Biestek, as substantial.
And much the same is true of Biestek's claim that an expert's refusal precludes meaningful cross-examination. We agree with Biestek that an ALJ and reviewing court may properly consider obstacles to such questioning when deciding how much to credit an expert's opinion. See Perales , 402 U.S. at 402-406, 91 S.Ct. 1420. But Biestek goes too far in suggesting that the refusal to provide supporting data always interferes with effective cross-examination, or that the absence of such testing always requires treating an opinion as unreliable. Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods-where she got the information at issue and how she analyzed it and derived her conclusions.
See, e.g. , Chavez v. Berryhill , 895 F.3d 962, 969-970 (CA7 2018). And even without significant testing, a factfinder may conclude that testimony has sufficient indicia of reliability to support a conclusion about whether an applicant could find work. Indeed, Biestek effectively concedes both those points in cases where supporting data is missing, so long as an expert has not refused an applicant's demand. See supra , at 1154 - 1155. But once that much is acknowledged, Biestek's argument cannot hold. For with or without an express refusal, the absence of data places the selfsame limits on cross-examination.
Where Biestek goes wrong, at bottom, is in pressing for a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data. Sometimes an expert's withholding of such data, when combined with other aspects of the record, will prevent her testimony from qualifying as substantial evidence. That would be so, for example, if the expert has no good reason to keep the data private and her testimony lacks other markers of reliability. But sometimes the reservation of data will have no such effect. Even though the applicant might wish for the data, the expert's testimony still will clear (even handily so) the more-than-a-mere-scintilla threshold. The inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. See, e.g. , Perales , 402 U.S. at 399, 410, 91 S.Ct. 1420 (rejecting a categorical rule pertaining to the substantiality of medical reports in a disability hearing). It takes into account all features of the vocational expert's testimony, as well as the rest of the administrative record. And in so doing, it defers to the presiding ALJ, who has seen the hearing up close.
That much is sufficient to decide this case. Biestek petitioned us only to adopt the categorical rule we have now rejected. He did not ask us to decide whether, in the absence of that rule, substantial evidence supported the ALJ in denying him benefits. Accordingly, we affirm the Court of Appeals' judgment.
It is so ordered.
In contrast, the principal dissent cannot decide whether it favors such a categorical rule. At first, Justice GORSUCH endorses the rule Biestek and the Seventh Circuit have proposed. See post , at 1157. But in then addressing our opinion, he takes little or no issue with the reasoning we offer to show why that rule is too broad. See post , at 1153 - 1155. So the dissent tries to narrow the scope of Biestek's categorical rule-to only cases that look just like his. See post , at 1160 - 1161. And still more, it shelves all the "categorical" talk and concentrates on Biestek's case alone. See post , at 1158, 1160 - 1162. There, Justice GORSUCH's dissent joins Justice SOTOMAYOR's in concluding that the expert evidence in this case was insubstantial. But as we later explain, see infra , at 1157, Biestek did not petition us to resolve that factbound question; nor did his briefing and argument focus on anything other than the Seventh Circuit's categorical rule. We confine our opinion accordingly.
The SSA itself appears to agree. In the handbook given to vocational experts, the agency states: "You should have available, at the hearing, any vocational resource materials that you are likely to rely upon" because "the ALJ may ask you to provide relevant portions of [those] materials." SSA, Vocational Expert Handbook 37 (Aug. 2017), https://www.ssa.gov/appeals/public_experts/Vocational_Experts_ (VE)_Handbook-508.pdf (as last visited Mar. 28, 2019).
Question: What is the issue of the decision?
01. voting
02. Voting Rights Act of 1965, plus amendments
03. ballot access (of candidates and political parties)
04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action)
05. desegregation, schools
06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions.
07. affirmative action
08. slavery or indenture
09. sit-in demonstrations (protests against racial discrimination in places of public accommodation)
10. reapportionment: other than plans governed by the Voting Rights Act
11. debtors' rights
12. deportation (cf. immigration and naturalization)
13. employability of aliens (cf. immigration and naturalization)
14. sex discrimination (excluding sex discrimination in employment)
15. sex discrimination in employment (cf. sex discrimination)
16. Indians (other than pertains to state jurisdiction over)
17. Indians, state jurisdiction over
18. juveniles (cf. rights of illegitimates)
19. poverty law, constitutional
20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision.
21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits
22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes
23. residency requirements: durational, plus discrimination against nonresidents
24. military: draftee, or person subject to induction
25. military: active duty
26. military: veteran
27. immigration and naturalization: permanent residence
28. immigration and naturalization: citizenship
29. immigration and naturalization: loss of citizenship, denaturalization
30. immigration and naturalization: access to public education
31. immigration and naturalization: welfare benefits
32. immigration and naturalization: miscellaneous
33. indigents: appointment of counsel (cf. right to counsel)
34. indigents: inadequate representation by counsel (cf. right to counsel)
35. indigents: payment of fine
36. indigents: costs or filing fees
37. indigents: U.S. Supreme Court docketing fee
38. indigents: transcript
39. indigents: assistance of psychiatrist
40. indigents: miscellaneous
41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty)
42. miscellaneous civil rights (cf. comity: civil rights)
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.
Aleta May STUART, Appellant, v. Russell C. PEARCE and John M. Rehse, Appellees.
No. 14138.
United States Court of Appeals Sixth Circuit.
Feb. 2, 1960.
Conn, Gurwin & Conn, Detroit, Mich., for appellant.
Fred R. Walker, Detroit, Mich., H. Eugene Field, Royal Oak Mich., for appellees.
Before MILLER, CECIL, and WEICK, Circuit Judges.
PER CURIAM.
It appearing to the Court that the record on appeal in this case was tendered for filing and docketing on August 7, 1959; that the appellant has failed to deposit the filing fee as required by Rule 14(3) of this Court, 28 U.S.C.A. and has taken no steps to prosecute the appeal;
It is now ordered that the appeal be and it is docketed and dismissed for want of prosecution.
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_weightev | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GERBES SUPER MARKETS, INC., Respondent.
No. 20267.
United States Court of Appeals, Eighth Circuit.
Jan. 18, 1971.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William Wachter, Roger L. Sabo, Stephen Solomon, Attys., N.L.R.B., Washington, D. C., for petitioner.
Eidson, Lewis, Porter & Haynes by William G. Haynes, Topeka, Kan., for respondent.
Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.
HEANEY, Circuit Judge.
The National Labor Relations Board petitions this Court for the enforcement of an order issued against Gerbes Super Markets, Inc. The Board found that Gerbes had violated § 8(a) (1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. § 151, et seq. The Board ordered Gerbes to reinstate one employee, to bargain with the Meat Cutters’ Union with respect to the employees of the Meat Department in its Columbia, Missouri, store, and to post appropriate notices. The Board’s decision and order are reported at 176 N.L.R.B. No. 1, 71 L.R.R.M. 1181 (1969).
Gerbes argues: (1) that the manager of the Meat Department, Bill Phillippe, who was found by the Board to have restrained and coerced employees in violation of the Act, was not a supervisory employee of the company as defined by § 2(11) of the Act and that the company was, therefore, not responsible for his activities; (2) that there is not substantial evidence in the record as a whole to support the Board’s finding that supervisors or agents of the company coerced or restrained employees in violation of § 8(a) (1) of the Act; (3) that Nolan Tritschler was not discharged or otherwise discriminated against because of his protected union activities; (4) that the bargaining order was not proper because the unit for which the union requested recognition was an inappropriate one, and because the signatures of the employees to the authorization cards were obtained at a time when employees generally were being told they would have to join the union or lose their jobs; and (5) that the character of the unfair labor practices, if there were any, was not such as to permit the Board to issue a bargaining order.
We have carefully reviewed the record and we enforce the Board’s order.
We consider the employer’s contentions seriatim.
(1) Phillippe’s employment status.
Substantial evidence in the record supports the Board’s finding that Phillippe was a supervisory employee within the meaning of the Act. Its determination also has a reasonable basis in' law. See, N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084 (8th Cir. 1969). Phillippe was the manager of the Meat Department of the Columbia store. As manager, he “pretty well [ran] the meat shop.” He set employee work schedules, gave them their work assignments and effectively recommended the employment of many of the employees in his department. While he exercised each of these duties within reasonably defined limits, it is clear that he placed a primary role in the hiring process. He effectively recommended the hiring of at least three of six employees in the department, Larry Nelson, Gary Foley and David Owen, and played a part in the hiring of a fourth employee, Lequeta Joy Carlos. It is equally clear that he exercised considerable independent judgment in assigning and directing employees.
(2) The sufficiency of the evidence to support the Board’s findings of violations of § 8(a) (1) of the Act.
A careful review of the evidence has convinced us that Gerbes committed a series of unfair labor practices.
In early January of 1969, Nolan Trit-schler, an employee of Gerbes, discussed the question of unionizing the store with a number of fellow employees. When they showed an interest, Tritschler contacted a representative of the Retail Clerks’ Union who agreed to meet with the employees. Tritschler communicated this fact to some of his fellow employees. A few days thereafter, the store manager told Tritschler that he had recommended him to the home office for a wage increase of ten cents per hour. This was in addition to a similar increase received a short time earlier. The manager also stated that the company knew Tritschler had met with union representatives.
The Board found, and properly so in our opinion, (1) that the latter statement was calculated to give Tritschler the impression that his union activities were under surveillance, and (2) that the promise of a wage increase was designed to induce Tritschler to reject the union. See, McGraw-Edison Co. v. N.L.R.B., 419 F.2d 67 (8th Cir. 1969); N.L.R.B. v. Ralph Printing and Lithographing Company, 379 F.2d 687 (8th Cir. 1967).
Gerbes argues that the Board took the statement out of context and that the wage increase had been recommended weeks before it was given. We do not agree with either argument. We particularly note that the promise of the second wage increase, whenever it may have been recommended, was timed to coincide with the warning to Tritschler that he was under surveillance. It is also significant to note that other employees were granted additional wage increases which had been under consideration for at least a month and one-half.
There is also substantial evidence in the record as a whole to support the Board’s findings of numerous other § 8(a) (1) violations. Phillippe questioned various employees about union meetings. He also called two employees, Foley and Owen, into the meat cooler and told them the company might have to close the store because it couldn’t afford to pay union wages; and that if a union did come in, they would be replaced by apprentice meat cutters. Phil-lippe also told Foley not to sign a union authorization card and subsequently asked him to withdraw the one he had signed. Phillippe’s statements were not neutralized by a notice on the bulletin board to the effect that only the store manager had authority to speak for the company:
“ * * Statements of neutrality, couched in general language, without reference to, or repudiation of prior unlawful conduct of the employer’s supervisory personnel do not erase such prior unlawful conduct.”
A. P. Green Fire Brick Company v. N.L.R.B., 326 F.2d 910, 914 (8th Cir. 1964).
The store manager’s wife and a vocational teacher, who instructed two of the employees, were also properly found by the Board to have made coercive remarks on behalf of the company. See, McGraw-Edison Co. v. N.L.R.B., supra; N.L.R.B. v. Arkansas-Louisiana Gas Company, 333 F.2d 790 (8th Cir. 1964).
(3) Nolan Tritschler’s discharge.
There is ample evidence to support the Board’s finding that the Company, because of its increasing disenchantment with Tritschler’s efforts on behalf of the union, changed his day off from Saturday to Wednesday.
Tritschler was discharged after the union filed unfair labor practice charges and because Tritschler refused to surrender a five-page summary of an oral statement he had given to the company attorney. The attorney had written up the statement and handed it to Trit-schler to read and sign. Tritschler refused to return the statement unless he was given a copy or a written promise that he would receive a copy. The company refused, saying only that it would mail a copy to Tritschler. An argument developed. Tritschler was informed that his retention of the statement was an act of insubordination for which he would be discharged unless he returned the statement. Tritschler refused and was subsequently fired.
The Board held that Tritschler’s discharge violated the Act and ordered his reinstatement. We affirm. Under the circumstances of this case, it was reasonable for Tritschler to qualify his cooperation on the condition that he be furnished with a copy of the statement recorded by the employer. See, N.L.R.B. v. Great Atlantic and Pacific Tea Company, 409 F.2d 296, 299 (5th Cir. 1969); N.L.R.B. v. Neuhoff Bros., Packers, Inc., 375 F.2d 372, 376-378 (5th Cir. 1967). Thus, his discharge was violative of § 8(a) (1) of the Act.
(4) The propriety of the bargaining order.
The union obtained valid authorization cards from five of the six non-supervisory employees in the Meat Department. There is no evidence in the record to indicate that any of the employees of the Meat Department were told that “they may as well sign the cards now because after the union came in they would have to become a union member.” Indeed, the evidence is clear that the Meat Department employees signed the cards at or immediately after a meeting conducted by a representative of the Meat Cutters’ Union. It is also clear that no misrepresentations were made at that meeting, and there is no evidence in the record indicating that misrepresentations were made at any other time to these employees.
A unit consisting of the employees of the Meat Department was found by the Board to be an appropriate one. We find no abuse of discretion in this finding. N.L.R.B. v. William J. Burns Internat’l Detective Agency, Inc., 346 F.2d 897 (8th Cir. 1965); N.L.R.B. v. Hurley Company, 310 F.2d 158 (8th Cir. 1962). The department is physically separated from the rest of the store, it has a separate manager, the skills of the employees differ from those of the other employees in the store and there is no history of prior bargaining. Furthermore, Meat Department employees have rather consistently been found to be an appropriate unit. See, e.g., Hy-Vee Food Stores, Inc. v. N.L.R.B., 426 F.2d 763 (8th Cir. 1970).
Finally, we are convinced, for the reasons enunciated by the Board and on the authority of N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 613-616, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) and Hy-Vee Food Stores, Inc. v. N.L.R.B., supra, that the order requiring the petitioner to recognize and bargain with the union is proper.
We have considered and we reject each of the employer’s remaining contentions. Enforcement of the Board’s order is granted.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_origin | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
FRASER & JOHNSTON COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 71-1438.
United States Court of Appeals, Ninth Circuit.
Nov. 29, 1972.
Nathan R. Berke (argued), of Sever-son, Werson, Berke & Melchior, San Francisco, Cal., Joseph R. Grodin, San Francisco, Cal., Phillip J. Smith, Oakland, Cal., Robert LeProhn, San Francisco, Cal., for petitioner.
John H. Ferguson, Atty. (argued), John D. Burgoyne, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, Washington, D. C., Roy 0. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., for respondent.
Before WRIGHT and GOODWIN, Circuit Judges, and ANDERSON, District Judge.
Honorable J. Blaine Anderson, United States District Judge, District of Idaho, sitting by designation.
EUGENE A. WRIGHT, Circuit Judge:
Fraser & Johnston Company (hereinafter “the company”) has petitioned to review and set aside an order of the National Labor Relations Board, entered on March 22, 1971, pursuant to § 10(c) of the National Labor Relations Act, as amended (29 U.S.C. § 151 et seq.). The Board has filed a cross-application for enforcement of its order, which was reported at 189 NLRB No. 17. This court has jurisdiction over the proceedings under § 10(e) and (f) of the Act, the unfair labor practices having occurred in San Francisco and San Lorenzo, California.
The Board found that the company, which for valid economic reasons moved its plant 26 miles from San Francisco to San Lorenzo, violated § 8(a), (5) and (1) of the Act by refusing to bargain in good faith with certain unions about the effects of this plant relocation on the employees.
The Board also found that the company violated § 8(a)(3), (2) and (1) by recognizing the International Brotherhood of Electrical Workers (IBEW) as exclusive representative at the relocated plant and by making membership in the IBEW a condition of employment at the relocated plant.
The Board further found that the company's refusal to recognize the unions listed in footnote 1 as bargaining representatives of the employees at the relocated plant was a violation of § 8(a)(5) and (1).
RELOCATION OF THE COMPANY PLANT.
The company is a California corporation engaged in the business of manufacturing heating and air-conditioning units and equipment. Since 1966 it has been a wholly-owned subsidiary of Westinghouse Electric Corporation.
The company business was operated in San Francisco until July 1969. General inadequacy and condition of the plant facilities indicated that a move was necessary. The company had collective bargaining agreements with five unions, only three of which, the IAM, Sheet Metal Workers, and Boilermakers, are involved in the proceedings here. The unions agreed that a move was necessary.
The company sent to the president of each of the unions a letter in May 1968 warning of the possible relocation. Another letter in June invited the unions to review the relocation plan and to offer suggestions. After many years of harmonious union relationships, the company had contracts with IAM and the Sheet Metal Workers scheduled to expire in March 1971 and a contract with the Boilermakers expiring in June 1971. None of the contracts provided for conditions under which they would be terminated prior to the expiration dates and none had provisions relating to plant relocation.
During June and July 1968 the company indicated to the three unions that if it decided to relocate to San Lorenzo it would move into a building owned and partially occupied by Westinghouse and would “use the people who are presently employed there doing metal fabrication and assembly work and who are covered by the IBEW contract in that location.” The company indicated that the San Francisco employees would be terminated and not transferred to the new location. This position was said to have been dictated by the management of Westinghouse which then was under contract with IBEW, at San Lorenzo. Westinghouse informed IBEW that its legal department had advised it was obliged “under the terms of the contract to continue to bargain with IBEW at that plant.”
Informed by Westinghouse that the San, Francisco unions were contending that they should be permitted to transfer their bargaining rights to San Lorenzo, IBEW responded that it did not understand the basis of the union’s claim “because our contract at San Lorenzo specified that we were the bargaining agent for all employees employed at the San Lorenzo plant.”
Plans for relocation continued. The company advised the employees that their jobs would be terminated, that the company would do everything possible to help them find new jobs with other employers and that it would continue discussions with the unions concerning severance benefits; further, that the employees now working at San Lorenzo would produce the company’s products but added,
“Should openings occur at the new location, a former employee of this plant can apply for a job there, if he so desires. Your application will certainly be considered at San Lorenzo, based on our needs at that time.”
Two reasons were given by the company for its refusal to transfer its employees or to continue to bargain with their representatives after the relocation. First, it said it was obliged under the Westinghouse contract with IBEW to honor IBEW’s claim to represent all production and maintenance employees at San Lorenzo. Second, the company justified its opposition to transfers by relying on a survey made by its foremen which indicated that a majority of the San Francisco employees were not interested in transferring to San Lorenzo. The company’s chief negotiator told the unions that a majority of the employees lived in San Francisco, that most commuting was done into the central city rather than out of it and that, on the basis of his “experience with other companies,” he felt that a number of employees who might initially decide to transfer would subsequently decide not to continue.
The unions countered with the results of a verbal survey by its steward showing that 80 to 85% of its members did want to transfer. The IAM proposed in January 1969 a “joint canvass” of the employees.. The company rejected the proposal on the grounds that such a survey would be unreliable and that employees would sign in order to help others who wished to transfer. On April 30 the IAM circulated a petition in the plant among its member employees. Of 116, 93 requested that the company retain them at the new location, stating that they wanted the IAM to continue as their bargaining representative. The company received the petition about May 27, 1969.
The Boilermakers submitted a petition to its members and, of 45 on the seniority list, 35 signed the petition seeking continued employment.
Shop stewards for the Sheet Metal Workers circulated a petition among its 154 employees. Of that number, 120 signed the petition requesting both continued employment and continued representation. When the company was shown the results of the survey and the list, the company negotiator responded that, “It was not his opinion that this was the fact.” Anyway, he said, “he had an agreement with the IBEW at the San Lorenzo facility.”
Further discussions dealt mostly with severance pay but no agreement was reached. In March 1969 the company began the process of actually moving its equipment to San Lorenzo. In April, about 30 of the Westinghouse employees were released to the company and began working for it. By the end of that month, the company employed about 100 people there, after executing contract supplements with IBEW.
On July 3, 1969, the company terminated the last of its San Francisco employees, some 165 in number. In all material respects — company name, products, machinery, operational methods and supervision — the company’s operations in San Lorenzo were a continuation of the operations it had formerly conducted in San Francisco. Wages at the new plant were somewhat lower than those provided for under the San Francisco contract.
After the terminations some 65 San Francisco employees made application at San Lorenzo. Jobs were offered to 49; 33 of those were accepted. Of the rest, two failed to pass their physical examinations, and 14 declined the specific jobs which they were offered. Under the terms of the IBEW contract, those accepting employment were required to tender initiation fees and dues to the IBEW in order to keep their jobs. In addition, they were told they would receive no credit for previous service but would be treated as new employees.
REFUSAL TO BARGAIN ABOUT TRANSFERS.
Substantial evidence supports the Board’s finding that the company failed to bargain in good faith over the effects of the relocation on the employees. While the company was under no obligation to accede to the demands of the unions that the employees be transferred with full seniority, union representation, and other rights, it was required to bargain in good faith over that issue. N.L.R.B. v. Lewis, 246 F.2d 886 (9th Cir. 1957).
The company failed to bargain in good faith in two respects. Had enough of the San Francisco employees transferred to constitute a majority of the appropriate bargaining unit in the new location, the integrity of the previous bargaining unit would have been preserved.
It follows that despite the company’s insistent claim that its obligation to the IBEW precluded it from agreeing to transfers, no legal necessity compelled it either to refuse transfers or to treat IBEW as the exclusive representative of all the production and maintenance employees engaged in its relocated operations. The Board, therefore, justifiably inferred that the reasons given for the company’s position were not the real reasons. Whatever the company’s true reasons might have been, it is clear that adhering to an untenable legal position during the course of negotiations is inconsistent with the obligation to bargain in good faith.
In addition, the company contended that its employees did not want to transfer. However, when faced with union surveys indicating that, a large majority of the employees would transfer, the company refused to take further steps to ascertain more accurately their employees’ desires. This was inconsistent with their bargaining position and, considered in light of their unreasonable insistence upon their obligation to the IBEW, constituted a refusal to bargain in good faith, in violation of § 8(a)(5).
RECOGNITION OF IBEW.
As noted, the company extended formal recognition to the IBEW on January 20, 1969. Assuming that the parties contemplated the hiring of the 85 IBEW-represented employees of the to-be-discontinued standard controls division of Westinghouse, it is clear that the parties must have been aware that the bargaining unit involved did not constitute a substantial and representative employee complement, since the actual unit would expand upon the completed transition to embrace more than 300 employees, the number formerly employed in San Francisco.
Accordingly, the Board properly found that the company rendered unlawful assistance and support to IBEW, in violation of Section 8(a)(2). In addition, since the contract with IBEW contained a union security provision requiring as a condition of employment membership in IBEW and payment to it of initiation fees and monthly dues, the Board correctly concluded that the company violated § 8(a) (3).
We therefore enforce that part of the Board’s order directing the company to sever contractual relations with the IBEW, and to reimburse each of the present and former employees for all initiation fees, dues, and other moneys exacted pursuant to the union security agreement with IBEW.
REFUSAL TO BARGAIN AT SAN LORENZO.
A more difficult question concerns the Board’s finding of a further § 8(a)(5) violation in the company’s refusing to bargain collectively with each of the unions at the relocated operation in San Lorenzo. It is now established that the existence of such an unfair labor practice is dependent upon a finding that a majority of the unions’ employees would have transferred to San Lorenzo and thus preserved the unions’ majorities had it not been for the company’s unfair labor practices.
The Board might well have been warranted in finding that a majority of the employees would have transferred had they been able to take the San Francisco contracts with them, since the large majority of the unions’ employees indicated that they wished to transfer with all union rights and benefits. However, the only indication in the record of those willing'to transfer without all their union rights were the 65 employees who actually made application at San Lorenzo.
The trial examiner’s finding that a majority would have transferred was evidently based on the assumption that the company would have agreed to the transfers with full union rights had it bargained in good faith. We are unable to sustain such an assumption, since § 8(a)(5) only required the company to bargain in good faith about transfers, and the evidence makes it fairly certain that such bargaining would not have resulted in the company agreeing to transfers with full union rights intact.
We find an apt precedent for our disposition of this issue in Cooper Thermometer Company v. N.L.R.B., 376 F.2d 684 (2d Cir. 1967). There, the plant was moved 27 miles. The company agreed to negotiate severance pay with the union, saying it would supply applications to its present employees for jobs at the new location. It was adamant, however, that neither employment, seniority nor other benefits would transfer automatically and, in addition, denied the union’s request for recognition at the new location.
The trial examiner concluded that, by failing to furnish the union with job data relating to the relocated operation (not charged in the instant case), refusing to negotiate concerning conditions of transfer, and insisting on dealing with employees on an individual basis, the company had violated § 8(a)(5). The Second Circuit, however, denied enforcement of that part of the Board’s order that required Cooper to recognize the union at the new location, on the ground that the evidence did not fairly support a finding that a majority of the employees would have transferred to the new plant.
There, as here, a majority of the employees signed forms asking for “a transfer to the new location of the company . . . with full recognition of my seniority.” After noting the fact that the signers had little to lose by offering to transfer on a condition they knew would not be met, the court concluded that that and several other factors raised a grave question about how seriously these letters could be taken. The court, however, found it unnecessary to decide that point,
“[S]ince § 8(a)(5) did not require Cooper to recognize the seniority of •the [employees requesting transfer]; its duty was only to talk in good faith, and the evidence makes it fairly plain that such talk would not have that result.” Id. at 689.
The trial examiner realized that he was bound by the Board’s decision in Cooper Thermometer; however, he found “the instant record substantially more compelling in two critical respects: the strong evidence of the employees’ desires, and the extent to which [the company] effectively prevented by its unfair labor practices the transfer of employees to the new plant.”
We find the evidence of the employees’ desires no more compelling here than in Cooper Thermometer, but there is merit in the second distinction made by the trial examiner. In our case the company, in addition to refusing to bargain about transfers, conditioned employment at the relocated plant on membership in IBEW, in violation of § 8(a)(3) and (2). Without doubt this condition could have had some effect on deterring employees from requesting a transfer.
The record, however, does not support an inference that a majority of the employees would have transferred in the absence of required IBEW membership; The pay rates at San Lorenzo were lower, and no public transportation was available to San Lorenzo from San Francisco, where the majority of employees lived. In addition, of the 49 employees who were offered jobs, 14 declined out of dissatisfaction with the job offered. Since there is no basis in the record for the assumption that the company would have agreed to job continuity, it is not illogical to conclude that an equal percentage of any employees requesting transfer, would similarly have declined job offers. In light of these factors, we feel that there is insufficient affirmative evidence to sustain the finding that the absence of the union’s majority status at the new plant has been caused by the company’s unfair labor practices.
A factor influencing our decision is that the remedy fashioned by the Board in this case imposes on the 85 former IBEW workers at San Lorenzo a bargaining representative without reference to their choice. The right to choose a union is a cornerstone of the National Labor Relations Act. While we recognize that an infringement of the § 7 rights of the 85 employees might be justified in the face of a showing that substantial rights of the San Francisco employees were in the balance, as we have indicated above, we do not find such a showing in the record before us.
. [9] Accordingly, we deny enforcement of so much of the Board’s order that would require the company now to recognize the unions as representatives of their respective units at San Lorenzo. The Board, however, is not precluded from issuing any further order as to recognition that it may deem appropriate in light of the status of the parties after the company has made the reinstatement offer which the Board has required and which we here enforce.
REINSTATEMENT AND BACK PAY.
The Board required that the company offer the terminated employees immediate and full reinstatement to their former or substantially equivalent positions at the San Lorenzo plant without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings. The company excepts to this order insofar as it requires them to replace existing employees, if necessary, and to make whole the terminated employees with back pay.
The initial question that must be determined, however, is what pay scale will be applicable to the reinstated employees, for both back pay and reinstatement purposes. The company and the unions have been ordered to bargain • in good faith over the transfer of the San Francisco employees. We think that the rate of pay should be that produced by this bargaining. The Board’s remedy should restore “the situation, as nearly as possible, to that which would have obtained but for” the unfair labor practices. Phelps Dodge Corp. v. N.L. R.B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941).
However, as the court stated in Cooper Thermometer,
“A sanction for refusal to bargain that would treat the guilty party as if he had agreed to what the other party demanded although the evidence shows he would have done nothing of the sort would give insufficient respect to Congress’ direction in § 8(d) that the obligation to bargain ‘does not compel either party to agree to a proposal or require the making of a concession.’ ” Cooper, Thermometer, supra, 376 F.2d at 690.
Section 10(c) empowers the Board, upon a finding that an unfair labor practice has been committed,
“to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act if
While we recognize that the Board’s power is a broad discretionary one, subject to limited judicial review, and that the “relation of remedy to policy is peculiarly a matter for administrative competence,” we are nonetheless convinced that the Board’s order does not effectuate the purposes of the Act as set forth in § 8(d). Accordingly we deny enforcement of so much of the Board’s order as would require reinstatement and back pay based on the San Francisco contracts’ scales of benefits and wages.
We are in agreement with the Board that the company must replace existing employees, if necessary. The company’s argument that such a remedy will punish innocent third parties who have been employed at San Lorenzo for up to three years overlooks the fact that the employees whom the company unlawfully ousted from their jobs were equally innocent. However, we do agree with the company that only those employees hired at San Lorenzo subsequent to April 30, 1969 should be subject to replacement.
The record clearly indicates that the company would not have agreed to displace the 85 employees formerly represented by IBEW, and we feel that the Board’s order violates the policy of § 8(d) in ordering that those 85 employees be replaced if necessary.
Accordingly, we grant enforcement in part and deny it in part. The case is remanded to the Board for the issuance of a decree in accordance with this opinion.
. International Association of Machinists and Aerospace Workers, AFL-CIO, Lodge No. 1327 (hereinafter “IAM”); Sheet Metal Production Workers International Association, Local Union No. 355, AFL-CIO (hereinafter “Sheet Metal Workers”); International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of America, Local 6, AFL-CIO (hereinafter “Boilermakers”).
. The company had formerly extended recognition to the IBEW on January 20, 1969, at a time when no employees had yet been hired for the San Lorenzo operation.
. California Footwear Company, 114 NLRB 765 (1955), enforced sub nom. N. L. R. B. v. Lewis, 246 F.2d 886 (9th Cir. 1957); International Paper Company, 150 NLRB 1252 (1965); Martin-Burns Sportables, Inc., 129 NLRB 364 (1969); Cf. N. L. R. B. v. Louisiana Bunkers, Inc., 409 F.2d 1295 (5th Cir. 1969).
. While company president Wood did testify that at the time of the hearing his “guess” was that 190 to 195 employees were employed at San Lorenzo, he also further stated that he didn’t “pay much attention to it . . . that’s [Industrial Relations Manager] Leen’s responsibility.”
Mr. Leen did not testify to the number of workers employed at San Lorenzo. In addition, the trial examiner found that in earlier dealings with the IAM the company had underestimated the number of employees at the San Francisco plant. Since there is no intimation in the record that the move to San Lorenzo involved a cutback, the trial examiner was reasonable in disregarding Wood’s “guess” and concluding that the company employed approximately the same number at both locations. The trial examiner and the Board were therefore justified in using the figure of approximately 300 employees as the basis for evaluating whether the 85 IBEW employees were a substantial and representative complement.
. The order is without prejudice to any of the rights which the employees may have gained under the contracts.
. California Footwear Company, supra; Cooper Thermometer Company v. NLRB, 160 NLRB 150, enforced in part 376 F.2d 684 (2d Cir. 1967); The Pierce Governor Company, Inc., 164 NLRB 97, affirmed sub nom. United Auto Workers v. N. L. R. B., 129 U.S.App.D.C. 282, 394 F.2d 757 (D.C.Cir.), cert. denied 393 U.S. 831, 89 S.Ct. 100, 21 L.Ed.2d 102 (1968).
. N. L. R. B. v. Seven-up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953).
. Phelps Dodge Corp. v. N. L. R. B., supra, 313 U.S. at 194, 61 S.Ct. at 852.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Anthony J. SESTRIC, Plaintiff-Appellant, v. William G. CLARK, et al., Defendants-Appellees.
No. 84-2298.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 28, 1985.
Decided June 18, 1985.
As Amended on Denial of Rehearing and Rehearing En Banc Aug. 1,1985.
Anthony J. Sestric, St. Louis, Mo., for plaintiff-appellant.
Patricia Rosen, 111. Atty. Gen. Office, Chicago, 111., for defendants-appellees.
Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
POSNER, Circuit Judge.
The appellant, Anthony Sestric, is a member of the Missouri bar living and practicing law in St. Louis. He brought this suit against the responsible Illinois officials to invalidate, primarily on federal constitutional grounds, the requirement that a nonresident who wants to practice law in Illinois pass the Illinois bar exam. If Sestric became a resident of Illinois, he could be admitted to the Illinois bar on motion, without taking the bar exam. St. Louis is just across the Mississippi River from Illinois, and Sestric would like to practice law in Illinois without moving to Illinois and without taking the Illinois bar exam. Although his complaint was dismissed on the defendants’ motion for summary judgment, he does not argue that the factual record is insufficient to resolve the issues he has raised on appeal.
Sestric bases his case on the privileges and immunities clause of Article IV of the Constitution (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”), and also on the better-known commerce and equal protection clauses. (His additional claim, that the refusal to admit him violated Illinois law, clearly has no merit, for the reasons stated by the district judge.) If the privileges and immunities clause could be viewed as a general guaranty against discrimination by states against nonresidents, then it and the commerce clause — viewed not as a grant of power to Congress but as a prohibition against state action inconsistent with free trade among the states (the “negative” or “dormant” commerce clause) — would occupy the same ground, and we would not have to discuss both clauses. As a matter of fact the framers of the Constitution may have intended the privileges and immunities clause to play the role that has come to be associated more with the “negative” commerce clause. See Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 447-48 (1982). But almost 200 years of judicial interpretation have opened up a wedge between the two clauses. For example, the privileges and immunities clause has been held not to protect corporations. See, e.g., W.C.M. Window Co. v. Bernardi, 730 F.2d 486, 492-93 (7th Cir.1984). A more pertinent example is that it has been held not to protect the full range of activities in which nonresidents might engage. See, e.g., Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 388, 98 S.Ct. 1852, 1862, 56 L.Ed.2d 354 (1978) (elk hunting by nonresidents of Montana). So we shall have to address the plaintiffs commerce clause contentions separately- (though briefly), and also his equal protection contentions; but we shall begin with privileges and immunities.
Illinois does not require that members of its bar be residents of the state — a requirement that the U.S. Supreme Court held, after argument in this case, violates the privileges and immunities clause. See Supreme Court of New Hampshire v. Piper, — U.S. -, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985). A nonresident can get admitted to the Illinois bar by passing the Illinois bar exam and satisfying the usual ethical requirements. Nonresidents more than six years out of law school, like the plaintiff, used to be denied this right; but that exclusion, the focus of the plaintiff’s challenge in the district court, was rescinded while the appeal in this case was pending. See Rule 703 of the Illinois Supreme Court (Sept. 14, 1984). Though it was not till his reply brief in this court that Sestric redirected his attack to the requirement that he sit for the bar exam, the rule change that ended the exclusion of nonresident lawyers who were more than six years out of law school came after he filed his brief; so he is not subject to criticism for having changed his theory when he did. We could remand the case to the district court to consider the new theory before we do, but since it raises only pure issues of law and the district judge who decided the case has died, the delays involved in a remand would not be justified.
If Sestric moved to Illinois he would be excused from having to take the Illinois bar exam, provided he had practiced continuously for five of the last seven years in a jurisdiction to whose bar he had been admitted, Ill.S.Ct.R. 705, as Sestric has (we shall call this the “continuous practice” requirement). Therefore he is treated less favorably than a class of (new) Illinois residents. This difference is the basis of Ses-tric’s present claim under the privileges and immunities clause. Whether such a difference violates the clause, or any other provision of the Constitution, is one of first impression at the federal appellate level, although the Massachusetts Supreme Court has held a similar regulation to be in violation of the clause. In re Jadd, 391 Mass. 227, 236-37, 461 N.E.2d 760, 765-66 (1984). Several decisions, one by this court, uphold the constitutionality of continuous-practice requirements. See Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983); Salibra v. Supreme Court of Ohio, 730 F.2d 1059, 1062-64 (6th Cir.1984); Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y. 1982), aff’d on the district court’s opinion, 702 F.2d 46 (2d Cir.1983) (per curiam). And Hawkins v. Moss, 503 F.2d 1171 (4th Cir.1974), upholds the denial of the continuous-practice exemption to a lawyer whose state of licensing does not reciprocate the exemption. Although none of these cases is directly in point, since the plaintiffs were residents complaining about a requirement that Sestric (a nonresident) satisfies, all contain dicta which east doubt on the validity of Sestric’s claim. For example, we said in Lowrie that “there is no residency requirement preventing Lowrie from taking the Illinois bar examination in the first instance. The years of practice and residency requirement at issue in this case prevent Lowrie from being admitted to the Illinois bar without examination. It is primarily for this reason, as well as on the ground that we are unable to, as amicus curíae does, ascribe to the Illinois Supreme Court a motive of discouraging out-of-state lawyers from migrating to Illinois, that we find the [amicus’s] Privileges and Immunities Clause contentions devoid of merit.” 716 F.2d at 414 (emphasis in original). See also 730 F.2d at 1063, 1065; 503 F.2d at 1176-80; 552 F.Supp. at 587-88. Lowrie also suggests, it is true, that the practice of law is not one of the privileges protected by the privileges and immunities clause, see 716 F.2d at 414 — a proposition that, after Piper, can no longer be maintained. See 105 S.Ct. at 1277. But as the passage quoted above makes clear, this was not our primary ground for rejecting Lowrie’s privileges and immunities claim.
In any event, Piper, though it is, as we shall see, distinguishable from this case, requires us to take a fresh look at the issue, and not just rest on dicta in lower-court decisions, our own or others’. The Supreme Court stated in Piper that discrimination against a nonresident who wants to practice law violates the privileges and immunities clause unless “(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective. In deciding whether the discrimination bears a close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means.” Id. at 1279 (citation and footnote omitted). This is a tough test to pass, but before applying it to the “discrimination” of which Sestric complains we must ask whether the Supreme Court intended the test to apply to such a claim. Sestric’s claim is different from Piper’s. It is not clear that Sestric has been deprived of a privilege or an immunity within the meaning of the clause or that he is the victim of a discrimination in favor of residents and against nonresidents — or indeed that there is any discrimination between any two groups. Thus he may not even have a prima facie claim under the privileges and immunities clause, or he may have a claim more easily rebutted than Piper’s.
In the usual privileges and immunities case a state conditions a substantial opportunity or “privilege” — such as, in Piper itself, the practice of law — on the status of being a resident of the state. Thus in our Bernardi case, or in Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) (the “Alaska Hire” case), only residents could be hired to work on certain projects in the state unless there were no residents qualified to do the work. Illinois does nothing like that regarding the practice of law. Although it requires nonresidents to take a bar exam, it requires the same of all residents except new residents who have practiced law continuously for five of the last seven years in a state in which they are licensed. The privilege that Sestric has been deprived of is not the privilege of practicing law in Illinois; nonresidents can practice law in Illinois provided that, like (most) residents, they pass the bar exam. He has been deprived of the “privilege” that some new residents have of being allowed to practice law without taking the bar exam. Maybe the case is really closer to Baldwin v. Montana Fish & Game Comm’n, supra, than to Piper —at least at a deeper level of analysis than one that notes that Baldwin is about hunting and Piper about lawyering.
Put differently, if practical exclusion from a socially marginal activity such as hunting elk is not within the scope of the privileges and immunities clause (the nonresident license fee was as much as 25 times higher than the resident license fee, see 436 U.S. at 374, 98 S.Ct. at 1855), maybe neither is the inconveniencing, as distinct from exclusion, of a nonresident seeking to engage in a vital calling such as law. Granted, the exclusion need not be absolute to be actionable under the privileges and immunities clause, though it was in Piper. A prohibitive condition, such as the nonresident license fee in Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1161, 92 L.Ed.2d 1460 (1948), that was 100 times the resident license fee, will do. See also Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L.Ed. 449 (1871), where, as in Baldwin, the maximum difference was 25 times. In Bernardi and Hicklin nonresidents were eligible for the jobs in question provided there were no qualified residents. But in all these cases the tendency was to exclude most nonresidents. It is a matter of conjecture whether the requirement of taking and passing a bar exam would actually exclude many lawyers having a serious desire to conduct a substantial practice in Illinois; and the exclusion of those having no such desire would not do much damage to the policy of the privileges and immunities clause.
The other respect in which this case breaks the mold of previous privileges and immunities cases is that it does not involve a clear-cut preference for residents, most of whom of course have to take the bar exam too; it is a preference for new residents over both old residents and nonresidents. As a matter of fact, the elimination of the preference of which Sestric complains could harm new residents without helping nonresidents. This can be seen by imagining that Illinois bowed to Sestric’s view of his rights under the privileges and immunities clause by requiring everyone— old resident, new resident, nonresident— wanting to practice law in Illinois to take the bar exam. As of course it could do: “Our holding in this case does not interfere with the ability of the states to regulate their bars. The nonresident who seeks to join a bar, unlike- the pro hae vice applicant, must have the same professional and personal qualifications required of resident lawyers.” Supreme Court of New Hampshire v. Piper, supra, 105 S.Ct. at 1278 n. 16. See also In re Gordon, 48 N.Y.2d 266, 273, 42 N.Y.S.2d 641, 645, 397 N.E.2d 1309, 1313 (1979). Few states want to admit to their bars every lawyer admitted in one of the other 49 states. To avoid this a state need only, under Sestric’s view of privileges and immunities, require every lawyer who wants to practice in the state to take the state’s bar exam. Such a rule would bear harder on nonresidents as a class than the rule that Sestric challenges, by making it more costly for them to become residents. Though clearly constitutional, such a rule would not help Sestric or any other nonresident; it would just hurt recent nonresidents (= new residents).
This suggests that there is something amiss with Sestric’s claim. And, indeed, even at the purely verbal level of constitutional interpretation a nonresident’s complaint about a burden (taking the bar exam) that also rests on many residents (all but new residents) does not fit the privileges and immunities clause comfortably. The clause speaks of the privileges and immunities “of Citizens in the several States,” and in this case it may be asked: which citizens of Illinois — old ones or new ones — provide the measure of Sestric’s rights? There is also a substantial argument of policy. If (unlike the present case) the State of Illinois, while allowing nonresidents to practice law if they passed the bar exam, allowed any resident to practice law without having to pass the bar exam, it would be discriminating in favor of residents and against nonresidents. There would be a suspicion that the discrimination was unjustified — a needless though far from insurmountable obstacle to interstate mobility of lawyers — because the burden would be borne by nonresidents, who have no voice in the public policy of the state. Cf. Toomer v. Witsell, supra, 334 U.S. at 396, 68 S.Ct. at 1162. (True, residents would be diffusely hurt as consumers of legal services; but no resident lawyer would be hurt.) But the State of Illinois does not excuse all or even most residents from having to pass the bar exam in order to practice law in Illinois. It requires all old residents, some new residents (those who do not satisfy the continuous-practice requirement), and nonresidents alike to pass the bar. The fact that the same burden is placed on both resident and nonresident groups provides some assurance that it is a moderate and reasonable, rather than arbitrary and prohibitive, burden. In the battle of the footnotes between the majority and dissenting opinions in United Building & Construction Trades Council v. Mayor & Council of City of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984), a case nominally involving a discriminatory city ordinance rather than a state law, it was common ground that the effect on state residents of an alleged discrimination against nonresidents was relevant to evaluating the privileges and immunities claim. Compare id. at 1027 n. 9 (majority opinion) with id. at 1034-35 and n. 12 (dissenting opinion).
Discrimination against new residents has been a frequent target of constitutional attack; one has only to recall Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), where the Supreme Court held that states could not deny welfare benefits to new residents. If as in this case a state favors new residents, there is a presumption that what it is doing is proper. “[A] State may make residence within its boundaries more attractive by offering direct benefits to its citizens in the form of public services, lower taxes than other States offer, or direct distributions of its munificence. Through these means, one State may attract citizens of other States to join the numbers of its citizenry. That is a healthy form of rivalry____” Zobel v. Williams, 457 U.S. 55, 67-68, 102 S.Ct. 2309, 2316-2317, 72 L.Ed.2d 672 (1982) (concurring opinion). Although this was said in an equal protection case, we cannot think why the same thing should not be true in a privileges and immunities case as well. (Zobel has additional significance for this case: it held that preferring old over new residents was not forbidden by the privileges and immunities clause. See id. at 59 n. 5, 102 S.Ct. at 2312 n. 5. Here Illinois has preferred a class of new residents over both old residents and nonresidents.) Moreover, by allowing lawyers who move to Illinois to be admitted to the Illinois bar without taking the bar exam only if other states accord the same privilege to Illinois lawyers who move to other states (the practice known as “reciprocity,” on which see, e.g., Ill.S.Ct.R. 705(b); Hawkins v. Moss, supra; Ricci v. State Bd. of Law Examiners, 427 F.Supp. 611, 618 (E.D.Pa.1977), vacated on other grounds, 569 F.2d 782 (3d Cir.1978) (per curiam)), Illinois eases the flow not only of new lawyers into Illinois but also of Illinois lawyers into other states. The rule that Sestric challenges promotes interstate mobility, at least when defined to include the relocation of citizens to new states as well as the provision of goods and services by nonresidents.
Not only has Illinois not denied a privilege to nonresidents that is generally available to residents, but it may not have imposed a net burden on nonresidents even compared to the favored resident group— the new residents. The Florida lawyer (say) who by moving to Illinois can be admitted to the Illinois bar without having to take the Illinois bar exam would probably be giving up his Florida practice. He would not have to give it up, but even today most lawyers have a local rather than multistate practice, and therefore most lawyers who change states abandon their former practice. If he had remained in Florida and sought admission to the Illinois bar as a nonresident, he would have to take the bar exam, but on the other hand he would be retaining his Florida practice; he would not stay in Florida if he wanted to practice law full-time in Illinois. Thus, though he would have taken (so far in his professional lifetime) two bar exams, he would have done so in order to practice in two states, not in one state as in our first example. Sestric does not propose to give up his Missouri practice for an Illinois practice. He wants to practice in both states though he has passed only one bar. If allowed to do this he will be better off than a lawyer who pulls up stakes in Missouri and relocates to Illinois. Of course if that lawyer retains his Missouri practice, as he could do since he would still be a member of the Missouri bar, his position would be symmetrical with what Sestric is seeking for himself. But as is usually the case in law, we are dealing with probabilities rather than certainties. A person who moves to another state is unlikely to have a multi-state practice, while a person who applies for admission to a state’s bar as a nonresident must be seeking to have at least a two-state practice. It is not obviously unreasonable to make him take a second bar exam.
Because Illinois has not barred nonresidents from practicing law, has not discriminated against residents in gross, and may not even have imposed a net burden on nonresidents compared to the small class of favored residents, Sestric has failed to make out a prima facie case under the privileges and immunities clause. But since we shall have to consider Illinois’ justification for the challenged rule under the equal protection clause, we shall (after doing so) return to the issue of privileges and immunities and show that, even if we are wrong and Sestric has made out a prima facie case under the privileges and immunities clause, Illinois has rebutted it.
As we cannot say that Illinois’ rule is more likely to impede than to increase the interstate mobility of lawyers, it is apparent that Illinois has not violated the commerce clause. A state may not place unreasonable burdens on free trade among the states; and among the markets that the states must not attempt to balkanize through tariffs or regulation are labor markets, see, e.g., W.C.M. Window Co. v. Bernardi, supra, 730 F.2d at 493-96, including the market for legal services. But, as we have seen, far from having placed an unreasonable burden on the interstate mobility of lawyers, Illinois may well have increased that mobility.
It is true that explicitly reciprocal trade barriers have been knocked down under the commerce clause, see, e.g., A & P Tea Co. v. Cottrell, 424 U.S. 366, 378-79, 96 S.Ct. 923, 931-32, 47 L.Ed.2d 55 (1976); they are in effect retaliatory tariffs. But despite the reciprocity provision in Illinois Supreme Court Rule 705(b), Illinois has not created a barrier to nonresident lawyers and then offered to remove it if other states do likewise. The bar exam is a condition for admission to the bar imposed on residents and nonresidents alike; the waiving of the condition for a class of new residents merely makes it easier for lawyers to change states.
The plaintiff’s real objection, as it seems to us, is not that the Illinois rule keeps him, as a nonresident, from practicing law in Illinois but that it creates an arbitrary distinction between experienced new residents and equally experienced nonresidents by excusing the former from the bar exam required of the latter. This is a claim most naturally assessed under the equal protection clause of the Fourteenth Amendment. One response, already suggested, is that there is no discrimination— no (net) difference of treatment between persons similarly situated. But if there is, it is a rational discrimination, and that is all the justification that the equal protection clause requires for such a distinction. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); Lowrie v. Goldenhersh, supra, 716 F.2d at 408-09; Shapiro v. Cooke, supra, 552 F.Supp. at 586.
The plaintiff is claiming a right to practice law in Illinois without being a resident and without taking a bar exam. There can be no assurance that he knows Illinois law well enough to represent clients in Illinois competently. Although there might seem to be no greater assurance regarding lawyers who move to Illinois and are admitted without having to take a bar exam, they at least are making a greater commitment to the state. By becoming residents of Illinois they place themselves in a situation where in all likelihood the bulk of their clients will be Illinois clients; the bulk of the law they practice will be Illinois law; and they will learn through doing. (Of course this is not so in every case; some Illinois lawyers, especially in the large firms in Chicago, have a federal or multi-state rather than Illinois practice.) A nonresident who practices law in Illinois might do so on a most intermittent basis. He has not made the commitment entailed in becoming a resident. The focus of his practice being elsewhere, his incentive to master Illinois law is less than that of a resident who expects to practice Illinois law full time. Taking and passing the bar exam is thus a substitute commitment for residence; it forces the nonresident to bone up on Illinois law. And it is a far less burdensome commitment than moving into the state. To make a person change his state of residence to demonstrate that he is serious about practicing the state’s law is, the Supreme Court held in Piper, too burdensome. But Sestrie is complaining not about the burdens of the bar exam but about what he contends is the unfair advantage that new residents have over him in being excused from having to take the bar; and they are excused only because they have borne the much greater burden of relocating their home and (in all likelihood) their practice to a new state.
Of course one can find — and readily, too — holes in Illinois’ defense to the charge of undue favoritism to new residents:
1. It has long been argued that bar exams test skill in “cramming,” rather than knowledge of state law, and that by never reexamining those who are admitted to the bar a state gives no protection against the loss of legal skills through disuse or forgetting. But this argument is too powerful. It is an argument against ever making the bar exam a condition of admission to the bar. The universality of the requirement makes this a dubious argument. (In contrast, in Piper the Supreme Court pointed out that a number of states —including, of course, Illinois — had stopped requiring residence as a condition of admission to the bar. See 105 S.Ct. at 1275 n. 5.) So does the fact that the courts have upheld the requirement against repeated contentions that it unreasonably discriminates against the members of some minority groups or deprives persons of their liberty of occupation without due process of law. See, e.g., Poats v. Givan, 651 F.2d 495 (7th Cir.1981) (per curiam); Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d 474, 477 (7th Cir.1974) (per curiam); Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir.1979) (per curiam); Tyler v. Vickery, 517 F.2d 1089, 1101-03 (5th Cir.1975).
2. A lawyer might move to Illinois, become a member of the Illinois bar without taking the bar exam, and a few weeks later leave Illinois, so that although he would remain a member of the Illinois bar his situation would be realistically the same as that of a nonresident lawyer. But such cases are rare. Although the word “resident” is a chameleon, see, e.g., Lister v. Hoover, 655 F.2d 123, 128 (7th Cir.1981) (per curiam), the usual meaning in Illinois law as in other states’ law is “domiciliary.” See Fagiano v. Police Bd. of City of Chicago, 98 Ill.2d 277, 74 Ill.Dec. 525, 456 N.E.2d 27 (1983). And although the word is not defined in Rule 705, subsection (d) does require that the applicant be an “actual resident,” the same as the ordinance in Fagiano, and that he certify “that upon admission to the bar he will actively and continuously engage in the practice of law in” Illinois. So we may take it that for purposes of the rule “residence” implies an intent to remain indefinitely. See also Hicklin v. Orbeck, supra, 437 U.S. at 522 n. 5, 98 S.Ct. at 2485 n. 5. Indefinite is not permanent; but if the lawyer left the state after a few years rather than a few weeks, he would have as good a grounding in Illinois law as a nonresident who had taken the bar exam. In any event, we do not think Illinois’ justification must fail merely because we can imagine cases to which it would be inapplicable. Although Piper pointed out that New Hampshire’s residence requirement was “underinclusive ... because it permits lawyers who move away from the State to retain their membership in the bar,” 105 S.Ct. at 1279, and the Illinois rule is similarly underinclusive, we do not read Piper to hold that underinclusiveness is a fatal weakness of a rule (which was not before the Court) that does not forbid nonresidents to practice law but merely requires them, like old residents, to take the bar exam. And an underinclusive rule is not necessarily unreasonable, which is the test under the equal protection clause.
3. There are alternative methods to the bar exam for assuring that nonresidents know enough local law to practice competently, such as “a continuing practice requirement measured by a minimum volume of local work per year,” “mandatory continuing legal education for all licensed attorneys,” and “periodic reexamination of all admitted attorneys for general competency or for certification in areas of specialty.” Hafter, Toward the Multistate Practice of Law Through Admission by Reciprocity, 53 Miss.L.J. 1, 41 (1983) (footnotes omitted). No doubt a stiff fee would winnow out the fly-by-nighters. The problem is that any of these alternatives could easily be more burdensome, more exclusionary, than the bar exam; it all depends on the specifies. See, e.g., Brakel & Loh, Regulating the Multistate Practice of Law, 50 Wash.L.Rev. 699, 712 (1975). We thus are not sure that there is a less restrictive alternative to the bar exam, or at least that the courts can determine its existence reliably.
4. The economic analysis of professional licensure in general, see, e.g., Friedman, Capitalism and Freedom 137-60 (1962); Sti-gler, The Theory of Economic Regulation, 2 Bell J. Econ. & Management Sci. 3, 13-17 (1971); Occupational Licensure and Regulation (Rottenberg ed. 1980); Shepard, Licensing Restrictions and the Cost of Dental Care, 21 J.Law & Econ. 187 (1978), and of the licensing of lawyers in particular, see, e.g., Pashigian, Occupational Licensing and the Interstate Mobility of Professionals, 22 J.Law & Econ. 1 (1979), teaches that the licensing of lawyers is an anachronism, or worse; that a free market in legal services will yield the optimal quality at the optimal price; and that a bar exam, administered once in a lawyer’s lifetime, gives no assurance of minimum quality over the lawyer’s professional lifetime— and indeed has no other purpose than to limit the number of lawyers and hence keep the prices of their services up. One who is persuaded of these theses will doubt that Illinois should be allowed to make anyone take a bar exam — even a lawyer from Hawaii who has one piece of business in Illinois every decade but wants to tell his clients that he is qualified to practice law in every state. Although having to pass a bar exam would indeed discourage such birds of passage, skeptics of lawyer licensing will argue that all that is important (if that — maybe the discipline of the market is enough) is that the lawyer be subject to discipline by the state, as any member of the Illinois bar is no matter where he lives. But we do not think that the equal protection clause ordains in effect a national bar, whereby admission to one state’s bar is admission to every other’s unless the other state refuses to admit new residents on the basis of their license in the state where they have practiced continuously for a period of time in the recent past. A majority of states, and the District of Columbia, allow admission of new residents on the basis of practice in another state. See American Bar Ass’n, Comprehensive Guide to Bar Admission Requirements 30-31 (1984) (Chart VIII). If Sestric’s claim prevails, these states will have to decide whether to end this privilege or stand willing to admit on motion most lawyers in the country.
The Supreme Court has said that the high costs of information that many clients face in choosing among lawyers and monitoring the performance of the lawyer they have chosen justify the states in regulating the advertising of legal services with an even freer hand than the First Amendment allows government in regulating the advertising of ordinary goods and services. See Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810 (1977) (“because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising”); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460-61, 98 S.Ct. 1912, 1920-21, 56 L.Ed.2d 444 (1978). Thus the states have been held to have a legitimate interest in regulating the quality of legal practice, and it is not an irrational method of regulation to make nonresident lawyers take the state’s bar exam — even though they have already taken a bar exam and practiced law in another state — while excusing new residents from having to take it.
This is enough to show that the challenged rule does not deny Sestrie the equal protection of the laws, even if (as we have questioned) there was any discrimination; and it is enough to rebut a prima facie case under the privileges and immunities clause, if contrary to our earlier conclusion Sestric has made out a prima facie case. If he has succeeded in showing a “discrimination” within the meaning of that clause, still it is not such a discrimination as would warrant the application of so stringent a test of legality as that applied in Piper to a much starker discrimination in favor of residents. The less serious a discrimination is, the less ought to be required to justify it. See Toomer v. Witsell, supra, 334 U.S. at 396, 68 S.Ct. at 1162 (“the inquiry in each case must be concerned with whether such reasons [for the difference in treatment] do exist and whether the degree of discrimination bears a close relation to them”) (emphasis added and footnote omitted).
Although the cases discuss issues under the privileges and immunities and commerce clauses separately, reflecting the historical divergence in the interpretation of these closely related provisions, we do not find in the cases the expression of a desire to set a higher standard for justifying the identical “discrimination” when it is challenged under the privileges and immunities clause than when it is challenged under the commerce clause. Indeed, when the discrimination is within the scope of both clauses, the courts typically cite decisions under either interchangeably. See, e.g., Hicklin v. Orbeck, supra, 437 U.S. at 532-34, 98 S.Ct. at 2490-92. In deciding a case under the commerce clause, the court examines both the gravity of the interference with free interstate trade and the justifications offered for it, to see whether the burden is an unreasonable one in the circumstances. Naturally if the state law is obviously protectionist it is struck down without much hesitation — the gap between interference and justification is widest. If the regulation is apparently evenhanded, it is struck down only if “the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); see also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471-72, 101 S.Ct. 715, 727-28, 66 L.Ed.2d 659 (1981). Here we have something intermediate — a regulation not totally evenhanded, because it singles out a group of new residents for favored treatment, but certainly not nakedly protectionist.
Where, as in Piper (had it been brought as a commerce clause case), the interference with free trade consists of totally barring nonresidents from a trade or calling, the burden of justification is great. Where the interference is small and maybe nonexistent (we said earlier that the Illinois rules actually increase the interstate mobility of lawyers, but here we are concerned with the standard of justification — if justification were necessary), a lighter burden of justification is appropriate. This is so whether the challenge is cast in privileges and immunities terms or in commerce clause terms. The two clauses are part of the same document, drafted by very intelligent and careful men; why would they have wanted the same discrimination against nonresidents to be tested by a different standard, depending on which clause was cited in the complaint? We do not read Piper to create such a distinction. The rigorous test of justification that it lays down is designed for cases where a trade or calling is confined to residents, and that is not this case.
But if all this is wrong we still think Sestric must lose, because Illinois’ rule passes even the test in Piper. The requirement of taking and passing the bar exam must be regarded, in light of its universality, as having a “close or substantial” relationship to a state’s legitimate objective of keeping up the quality of its bar. While alternative methods of keeping up that quality can easily be imagined, it is not clear, as we have said, that they would be any less restrictive than the bar exam. Constant judicial policing might be necessary to ensure that they were less restrictive. We might see the emergence of a judge-made counterpart to the Equal Employment Opportunity Commission’s guidelines for tests and other methods of selecting employees. See 29 C.F.R. Part 1607. The biggest shadow cast on Illinois’ rule is that it excuses new residents from taking the bar. How important to the quality of legal practice can the requirement of taking and passing the bar be if new residents are excused? But as we noted, the act of pulling up stakes in one state and relocating to another establishes a commitment to the new state — a commitment to learning its law and practicing that law competently — that is missing when a nonresident seeks admission to the bar of the state.
As the last point suggests, Sestric’s appeal is a challenge to the widespread practice of bar reciprocity, which typically favors (though perhaps superficially, as we have seen) new residents over nonresidents. The alternatives to reciprocity are a national bar or no reciprocity at all. The former might be superior to the system we have in this country for regulating the bar. But it is not even clear that reversing the district court would bring us closer to the national bar, rather than just destroy reciprocity. And if it would do the former, still not every good thing is constitutionally required; we think this particular good thing (if it is a good thing) is not.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
sc_caseorigin | 047 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
Noris BABB, Petitioner
v.
Robert WILKIE, Secretary of Veterans Affairs
No. 18-882
Supreme Court of the United States.
Argued January 15, 2020
Decided April 6, 2020
Joseph D. Magri, Sean M. McFadden, Merkle & Magri, P.A., Tampa, FL, Roman Martinez, Samir Deger-Sen, Margaret A. Upshaw, Latham & Watkins LLP, Washington, DC, for Petitioner.
Noel J. Francisco, Solicitor General, Joseph H. Hunt, Eric S. Dreiband, Assistant Attorneys General, Jeffrey B. Wall, Deputy Solicitor General, Elliott M. Davis, Acting Principal Deputy, Assistant Attorney General, Erica L. Ross, Assistant to the Solicitor General, Marleigh D. Dover, Stephanie R. Marcus, Thomas E. Chandler, Attorneys, Department of Justice, Washington, DC, for Respondent.
Justice ALITO delivered the opinion of the Court.
The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. 74, 29 U.S.C. § 633a(a), provides (with just a few exceptions) that "personnel actions" affecting individuals aged 40 and older "shall be made free from any discrimination based on age." We are asked to decide whether this provision imposes liability only when age is a "but-for cause" of the personnel action in question.
We hold that § 633a(a) goes further than that. The plain meaning of the critical statutory language ("made free from any discrimination based on age") demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of § 633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.
I
Noris Babb, who was born in 1960, is a clinical pharmacist at the U.S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. Babb brought suit in 2014 against the Secretary of Veterans Affairs (hereinafter VA), claiming that she had been subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination law. Only her age-discrimination claims are now before us.
Those claims center on the following personnel actions. First, in 2013, the VA took away Babb's "advanced scope" designation, which had made her eligible for promotion on the Federal Government's General Scale from a GS-12 to a GS-13. Second, during this same time period, she was denied training opportunities and was passed over for positions in the hospital's anticoagulation clinic. Third, in 2014, she was placed in a new position, and while her grade was raised to GS-13, her holiday pay was reduced. All these actions, she maintains, involved age discrimination, and in support of her claims, she alleges, among other things, that supervisors made a variety of age-related comments.
The VA moved for summary judgment and offered non-discriminatory reasons for the challenged actions, and the District Court granted that motion. Evaluating each of Babb's claims under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the court found that Babb had established a prima facie case, that the Secretary had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.
Babb appealed, contending that the District Court should not have used the McDonnell Douglas framework because it is not suited for "mixed motives" claims. She argued that under the terms of the ADEA's federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. As a result, she explained that even if the VA's proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part.
The Eleventh Circuit panel that heard Babb's appeal found that her argument was "foreclosed" by Circuit precedent but added that it might have agreed with her if it were "writing on a clean slate." Babb v. Secretary, Dept. of Veterans Affairs , 743 Fed.Appx. 280, 287 (2018) (citing Trask v. Secretary, Dept. of Veterans Affairs , 822 F.3d 1179 (CA11 2016) ).
We granted certiorari, 588 U.S. ----, 139 S.Ct. 2775, 204 L.Ed.2d 1156 (2019), to resolve a Circuit split over the interpretation of § 633a(a).
II
That provision of the ADEA states in relevant part: "All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a).
The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision. According to the Government, even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. This interpretation, the Government contends, follows both from the meaning of the statutory text and from the "default rule" that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct. See, e.g. , University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338, 346-347, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013).
Babb interprets the provision differently. She maintains that its language prohibits any adverse consideration of age in the decision-making process. Accordingly, she argues proof that age was a but-for cause of a challenged employment decision is not needed.
A
Which interpretation is correct? To decide, we start with the text of the statute, see Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 175, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), and as it turns out, it is not necessary to go any further. The plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation of § 633a(a). To explain the basis for our interpretation, we will first define the important terms in the statute and then consider how they relate to each other.
1
Section 633a(a) concerns "personnel actions," and while the ADEA does not define this term, its meaning is easy to understand. The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a "personnel action" to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. See 5 U.S.C. § 2302(a)(2)(A). That interpretation is consistent with the term's meaning in general usage, and we assume that it has the same meaning under the ADEA.
Under § 633a(a), personnel actions must be made "free from" discrimination. The phrase "free from" means "untainted" or "[c]lear of (something which is regarded as objectionable)." Webster's Third New International Dictionary 905 (def. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 12) (1933); see also American Heritage Dictionary 524 (def. 5(a)) (1969) (defining "free" "used with from" as "[n]ot affected or restricted by a given condition or circumstance"); Random House Dictionary of the English Language 565 (def. 12) (1966) (defining "free" as "exempt or released from something specified that controls, restrains, burdens, etc."). Thus, under § 633a(a), a personnel action must be made "untainted" by discrimination based on age, and the addition of the term "any" ("free from any discrimination based on age") drives the point home. And as for "discrimination," we assume that it carries its " 'normal definition,' " which is " 'differential treatment.' " Jackson v. Birmingham Bd. of Ed. , 544 U.S. 167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).
Under § 633a(a), the type of discrimination forbidden is "discrimination based on age," and "[i]n common talk, the phrase 'based on' indicates a but-for causal relationship." Safeco Ins. Co. of America v. Burr , 551 U.S. 47, 63, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) ; cf. Comcast Corp. v. National Assn. of African American-Owned Media , 140 S.Ct. 1009. Therefore, § 633a(a) requires that age be a but-for cause of the discrimination alleged.
What remains is the phrase "shall be made." "[S]hall be made" is a form of the verb "to make," which means "to bring into existence," "to produce," "to render," and "to cause to be or become." Random House Dictionary of the English Language, at 866. Thus, "shall be made" means "shall be produced," etc. And the imperative mood, denoting a duty, see Black's Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint.
2
So much for the individual terms used in § 633a(a). What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, "based on age" is an adjectival phrase that modifies the noun "discrimination." It does not modify "personnel actions." The statute does not say that "it is unlawful to take personnel actions that are based on age"; it says that "personnel actions ... shall be made free from any discrimination based on age." § 633a(a). As a result, age must be a but-for cause of discrimination-that is, of differential treatment-but not necessarily a but-for cause of a personnel action itself.
Second, "free from any discrimination" is an adverbial phrase that modifies the verb "made." Ibid . Thus, "free from any discrimination" describes how a personnel action must be "made," namely, in a way that is not tainted by differential treatment based on age. If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination.
This is the straightforward meaning of the terms of § 633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account.
To see what this entails in practice, consider a simple example. Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer's policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates' final scores and, seeing that employee A has the higher score, promotes employee A.
This decision is not "made" "free from any discrimination" because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was "based on age" because the five points would not have been taken away were it not for employee B's age.
It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A's score of 90 was higher than B's initial, legitimate score of 85. But under the language of § 633a(a), this does not preclude liability.
The Government has no answer to this parsing of the statutory text. It makes two correct points: first, that " 'discrimination based on age' " "requires but-for causation," and, second, that " 'discrimination' " means " ' "differential treatment." ' " Brief for Respondent 16-17. But based on these two points, the Government draws the unwarranted conclusion that "[i]t is thus not enough for a federal employer merely to consider age ... if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger." Id. , at 17. That conclusion does not follow from the two correct points on which it claims to be based. What follows instead is that, under § 633a(a), age must be the but-for cause of differential treatment , not that age must be a but-for cause of the ultimate decision .
B
The Government's primary argument rests not on the text of § 633a(a) but on prior cases interpreting different statutes. But contrary to the Government's argument, nothing in these past decisions undermines our interpretation of § 633a(a).
1. In Safeco Ins. Co. of America v. Burr , 551 U.S. at 63, 127 S.Ct. 2201, we interpreted a provision of the Fair Credit Reporting Act (FCRA) requiring that notice be provided "[i]f any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer [credit] report. " 15 U.S.C. § 1681m(a) (emphasis added). This language is quite different from that of 29 U.S.C. § 633a(a).
In § 1681m(a), the phrase "based ... on any information contained in a consumer [credit] report" modifies "adverse action," and thus the information in question must be a but-for cause of the adverse action. By contrast, in § 633a(a), "based on" does not modify "personnel actions"; it modifies "discrimination," i.e. , differential treatment based on age.
The Government tries to find support in Safeco 's discussion of FCRA's reference to an adverse action that is "based ... in part " on a credit report. 15 U.S.C. § 1681m(a) (emphasis added). The Safeco Court observed that the phrase "in part" could be read to mean that notice had to be given "whenever the report was considered in the rate-setting process," but it rejected this reading. 551 U.S. at 63, 127 S.Ct. 2201. The Government suggests that the Court reached this conclusion because it thought that Congress would have "said so expressly" if it had meant to require notice in situations where consideration of a credit report was inconsequential. Brief for Respondent 19. Accordingly, the Government argues, because § 633a(a) does not say expressly that consideration of age is unlawful, we should conclude that mere consideration is insufficient to trigger liability. See id ., at 19-20.
This argument fails for two reasons. First, as explained above, the language of § 633a(a) does expressly impose liability if age discrimination plays a part in a federal employment decision. Second, Safeco did not invoke the sort of super-plain-statement rule that the Government now attributes to it. Instead, the Safeco Court rejected the argument on other grounds, including its assessment of the particular statutory scheme at issue. See 551 U.S. at 63-64, 127 S.Ct. 2201. That reasoning obviously has no application here.
2. In Gross v. FBL Financial Services, Inc. , 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119, we interpreted the private-sector provision of the ADEA, 29 U.S.C. § 623(a)(1), and held that it requires a plaintiff to prove that "age was the 'but-for' cause of the employer's adverse action." 557 U.S. at 177, 129 S.Ct. 2343. But as we previously recognized, the ADEA's private- and public-sector provisions are "couched in very different terms." Gómez-Pérez v. Potter , 553 U.S. 474, 488, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008).
Section 623(a)(1) makes it "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Thus, the but-for causal language in § 623(a)(1)--"because of such individual's age"--is an adverbial phrase modifying the verbs ("to fail or refuse to hire," etc.) that specify the conduct that the provision regulates. For this reason, the syntax of § 623(a)(1) is critically different from that of § 633a(a), where, as noted, the but-for language modifies the noun "discrimination." This is important because all the verbs in § 623(a)(1) -failing or refusing to hire, discharging, or otherwise discriminating with respect to "compensation, terms, conditions, or privileges of employment"-refer to end results. By contrast, the provision in our case, § 633a(a), prohibits any age discrimination in the "mak[ing]" of a personnel decision, not just with respect to end results.
3. Finally, in University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503, we interpreted Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), as requiring retaliation to be a but-for cause of the end result of the employment decision. The Court saw no "meaningful textual difference between the text [of that provision] and the one in Gross ," 570 U.S. at 352, 133 S.Ct. 2517, and the Court found support for its interpretation in the rule that recovery for an intentional tort generally requires proof " 'that the harm would not have occurred' in the absence of-that is, but for-the defendant's conduct." 570 U.S. at 346-347, 133 S.Ct. 2517 (quoting Restatement of Torts § 431, Comment a , pp. 1159-1160 (1934)).
That reasoning has no application in the present case. The wording of § 633a(a) --which refers expressly to the "mak[ing]" of personnel actions in a way that is "free from any discrimination based on age"--is markedly different from the language of the statutes at issue in Gross and Nassar , and the traditional rule favoring but-for causation does not dictate a contrary result. Section 633a(a) requires proof of but-for causation, but the object of that causation is "discrimination," i.e. , differential treatment, not the personnel action itself.
For these reasons, Safeco , Gross , and Nassar are entirely consistent with our holding in this case.
C
We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so.
As first enacted, the ADEA "applied only to actions against private employers." Lehman v. Nakshian , 453 U.S. 156, 166, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). In 1974, "Congress expanded the scope of the ADEA" to reach both state and local governments and the Federal Government. Ibid. To cover state and local governments, Congress simply added them to the definition of an "employer" in the ADEA's private-sector provision, see 29 U.S.C. § 630(b), and Congress could have easily done the same for the Federal Government. Indeed, the first proposal for expansion of the ADEA to government entities did precisely that. Lehman , 453 U.S. at 166, n. 14, 101 S.Ct. 2698.
But Congress did not choose this route. Instead, it "deliberately prescribed a distinct statutory scheme applicable only to the federal sector," id. , at 166, 101 S.Ct. 2698, and in doing so, it eschewed the language used in the private-sector provision, § 623(a). See Gómez-Pérez , 553 U.S. at 488, 128 S.Ct. 1931. We generally ascribe significance to such a decision. See Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (" '[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion' ").
That Congress would want to hold the Federal Government to a higher standard than state and private employers is not unusual. See Supp. Letter Brief for Respondent 1 ("The federal government has long adhered to antidiscrimination policies that are more expansive than those required by ... the ADEA"); e.g. , Exec. Order No. 11478, § 1, 3 CFR 446 (1969) ("It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment ... and to promote the full realization of equal employment opportunity through a continuing affirmative program"); Exec. Order No. 12106, § 1-102, 3 CFR 263 (1978) (amending Exec. Order No. 11478 to cover discrimination on the basis of age). And several years after adding § 633a(a) to the ADEA, Congress amended the civil service laws to prescribe similar standards. See 5 U.S.C. § 2301(b)(2) ("Federal personnel management should be implemented consistent with the ... merit system principl[e that a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to ... age").
In any event, "where, as here, the words of [a] statute are unambiguous, the ' "judicial inquiry is complete." ' " Desert Palace, Inc. v. Costa , 539 U.S. 90, 98, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting Connecticut Nat. Bank v. Germain , 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ).
D
While Babb can establish that the VA violated § 633a(a) without proving that age was a but-for cause of the VA's personnel actions, she acknowledges-and we agree-that but-for causation is important in determining the appropriate remedy. It is bedrock law that "requested relief " must "redress the alleged injury." Steel Co. v. Citizens for Better Environment , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Thus, § 633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome.
We have long employed these basic principles. In Texas v. Lesage , 528 U.S. 18, 21-22, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam ), we applied this rule to a plaintiff who sought recovery under Rev. Stat. § 1979, 42 U.S.C. § 1983, for an alleged violation of the Equal Protection Clause. We explained: "[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting [damages] relief." 528 U.S. at 21, 120 S.Ct. 467. Cf. Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274, 285, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (rejecting rule that "would require reinstatement ... even if the same decision would have been reached had the incident not occurred").
Our conclusion is also supported by traditional principles of tort and remedies law. "Remedies generally seek to place the victim of a legal wrong ... in the position that person would have occupied if the wrong had not occurred." R. Weaver, E. Shoben, & M. Kelly, Principles of Remedies Law 5 (3d ed. 2017). Thus, "[a]n actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious." Restatement (Third) of Torts § 29, p. 493 (2005). Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination. But this is precisely what would happen if individuals who cannot show that discrimination was a but-for cause of the end result of a personnel action could receive relief that alters or compensates for the end result.
Although unable to obtain such relief, plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief. Determining what relief, if any, is appropriate in the present case is a matter for the District Court to decide in the first instance if Babb succeeds in showing that § 633a(a) was violated.
* * *
The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, concurring.
I join the majority opinion because I agree that 29 U.S.C. § 633a imposes liability even when age is not a " 'but-for cause' " of a personnel action. Ante , at 1171. I write separately to make two observations.
First, the Court does not foreclose § 633a claims arising from discriminatory processes. Cf. Comcast Corp. v. National Assn. of African American-Owned Media , 140 S.Ct. 1009 (GINSBURG, J., concurring in part and concurring in judgment). If, for example, an employer hires a 50-year-old person who passed a computer-aptitude test administered only to applicants above 40, clearly a question could arise as to whether the hiring decision was "made free from" differential treatment.
Second, this same example may suggest that § 633a permits damages remedies, even when the Government engages in nondispositive "age discrimination in the 'ma[king]' of a personnel decision." Ante , at 1176. If an applicant incurs costs to prepare for the discriminatorily administered aptitude test, a damages award compensating for such out-of-pocket expenses could restore the applicant to the "position tha[t] he or she would have enjoyed absent discrimination." Ante , at 1178.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co. , 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
The General Schedule (GS) is a federal pay scale that is divided into 15 numbered grades. See 5 U.S.C. § 5104. "[A]s the number of the grade increases, so do pay and responsibilities." United States v. Clark , 454 U.S. 555, 557, 102 S.Ct. 805, 70 L.Ed.2d 768 (1982).
We have repeatedly explained that " 'the word "any" has an expansive meaning.' " Ali v. Federal Bureau of Prisons , 552 U.S. 214, 219, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (quoting United States v. Gonzales , 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) ). The standard dictionary definition of "any" is "[s]ome, regardless of quantity or number." American Heritage Dictionary 59 (def. 2) (1969).
Beyond this, the Government's only other textual argument is that the term "made" refers to a particular moment in time, i.e. , the moment when the final employment decision is made. We agree, but this does not mean that age must be a but-for cause of the ultimate outcome. If, at the time when the decision is actually made, age plays a part, then the decision is not made "free from" age discrimination.
It is not clear that Babb actually disagrees with the Government on this point, although the many references in her brief to the decisionmaking process could be read to mean that § 633a(a) can be violated even if age played no part whatsoever when the actual decision was made. If that is what Babb wants to suggest, however, we must disagree. It is entirely natural to regard an employment decision as being "made" at the time when the outcome is actually determined and not during events leading up to that decision. See American Heritage Dictionary, at 788 (def. 10) (defining "make" as "[t]o arrive at" a particular conclusion, i.e. , to "make a decision "). And holding that § 633a(a) is violated when the consideration of age plays no role in the final decision would have startling implications.
Consider this example: A decision-maker must decide whether to promote employee A, who is under 40, or employee B, who is over 40. A subordinate recommends employee A and says that the recommendation is based in part on employee B's age. The decision-maker rebukes this subordinate for taking age into account, disregards the recommendation, and makes the decision independently. Under an interpretation that read "made" expansively to encompass a broader personnel process, § 633a(a) would be violated even though age played no role whatsoever in the ultimate decision. Indeed, there might be a violation even if the decision-maker decided to promote employee B. We are aware of no other anti-discrimination statute that imposes liability under such circumstances, and we do not think that § 633a(a) should be understood as the first.
Moreover, even if "discriminating with respect to compensation, terms, conditions, or privileges of employment" could be read more broadly to encompass things that occur before a final decision is made, the ejusdem generis canon would counsel a court to read that final phrase to refer--like the prior terms--to the final decision. See Christopher v. SmithKline Beecham Corp. , 567 U.S. 142, 163, and n. 19, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012).
Question: What is the court in which the case originated?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer: |
songer_appstate | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
STIMPSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 9219.
Circuit Court of Appeals, Eighth Circuit.
Jan. 25, 1932.
Rehearing Denied March 1, 1932.
William M. Fitch, of St. Louis, Mo. (George H. Moore, of St. Louis, Mo., on the brief), for petitioner.
Norman D. Keller, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst, to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Hartford Allen, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before VAN VALKENBURGH, BOOTH, and GARDNER, Circuit Judges.
BOOTH, Circuit Judge.
This is a petition for review of an order of the Board of Tax Appeals entered September 39,1939, as amended by an order of February 12, 1931, redetermining deficiencies in the income taxes of petitioner for the calendar years 1922, 1923-, and 1924. The two latter years only are here involved.
The question presented is whether certain transactions by petitioner relative to'securities owned by her were sales of said securities resulting in taxable gain to petitioner.
The relevant statutes are section 213 (a) of the Revenue Act of 1921 (e. 136, 42 Stat. 237, 237), and section 213 (a) of the Revenue Act of 1924 (c. 234, 43 Stat. 253, 267, 2:6 USCA § 954 (a). The two sections are substantially identical; the former reading, so far as here material,, as follows:
“See. 213. That for the purposes of this title * * * the term 'gross income’—
“(a) Includes gains, profits, and income derived from * * * sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property. * * * ”
The facts were stipulated; the more important are substantially as follows: Mrs. Stimpson, the petitioner, during the time of the transactions involved, was an inhabitant of Missouri. On May 14, 1923, she was the owner of certain securities, having been the owner of some of them since August 1, • 1929, and of others since July 13, 1921. The securities were in the custody of the State National Bank of St. Louis, Mo. On May 14, 1923, she wrote the following letter:
“St. Louis, Missouri. May 14, 1923. “State National Bank, St. Louis, Missouri.
“Gentlemen: You are holding for my account in your safe keeping department certain bonds and other securities.
“I hereby authorize you to sell these bonds and securities on or between this date and May 39th and place proceeds of the same to my account, and I also hereby authorize you to purchase for my account United States Treasury Certificates of such issue as you may be able to buy, charging the amount to my cheeking account.
“Further, sometime during the month of ■ June I would like for you to purchase back the first mentioned bonds and securities for my account and pay for the same with the
STIMPSON v.- COMMISSIONER OF INTERNAL REVENUE 817
65 F.Í2A) 815
proceeds of the sale of the United States Treasury Certificates purchased for mo as authorized above.
“Yours truly,
“[Signed] Dorothy Baker Stimpson.
“P. S.—You are authorized to charge my account one-eighth of one per cent., covering the above transactions, as your commission.
“[Signed] Dorothy Baker Stimpson.”
The bank received the letter and acted as follows: It placed a valuation upon the securities, using the market value where available; and, where not available, used an approximate value based upon the par value, income produced, supposed solvency of maker, and other information. The total amount of such valuation was $104,000. The bank caused this amount to be entered as a credit on the books of the bank in favor of the petitioner, and caused the securities and their respective valuations to be entered on the books of the bank as assets of the bank amounting to $104,000. The bank then charged the account of petitioner with $104,-000, took out of its assets United States Treasury certificates then rated at $104,000, and placed them in the hands of an officer of the bank for petitioner. This same officer of the bank had theretofore had the custody of the securities owned by Mrs. Stimpson. Thereafter, and in June, 1923, the bank took back into its assets the Treasury certificates valued at $104,000 and placed a credit to the account of Mrs. Stimpson of $104,000. The bank then charged Mrs. Stimpson’s account with $104,000, and the said officer of the bank thereafter held the said securities for Mrs. Stimpson. The various entries and credits were entered as parts of the same transaction.
Mrs. Stimpson did not know at the time the details of the transactions except as they appeared on her monthly statements from the bank, and these did not show the source from which the credit items had been obtained nor to whom the debit items had been paid. Mrs. Stimpson paid the bank one-eighth of one per cent, of $104,000 for handling the transactions.
Transactions similar in substantial respects took place in May and June, 1924, Mrs. Stimpson having written to the bank in May, 1924, a letter similar to the letter of May 14, 1923.
The valuation placed on the securities in 1924 (some additional securities having been added) was $138,000. June 2,1924, the bank 55 F.(2d)—52
sent to Mrs. Stimpson, who was then in Paris, Prance, the following letter :
“State National Bank,
“St. Louis, Mo. June 2nd, 1924. “Mrs. Dorothy Baker Stimpson, 58 Rue de Vaugirard, Paris, Prance.
“Dear Mrs. Stimpson: We enclose statement of your account to the close of business May 31st, 1924, together with cancelled checks and memorandums showing the various credits. The withdrawal of $5,100.00' on the 31st ult. was made by us and the amount invested in U. S. Treasury certificates. We have sold the certificates again and your account has been credited $5,100.00 to cover.
“We charge your account $1,000'.00' and send you, herewith, our two drafts on the American Exchange National Bank of New York for $500.00 each payable to your order.
“Wo also handled, in the same manner as last year, your securities left with us for safekeeping. We disposed of the securities, with the exception of the Liberty Bonds, at the par value of $138,000.00, investing that amount in U. S. Securities. We have repurchased the U. S. securities and have used the amount to buy back your securities so that same stand just as they were before. In your letter of May 14, 1923, you authorized us to charge your account Vs% of 1% as our commission covering this transaction. We have, therefore, charged your account $172.-50.
“Yours very truly,
“[Signed] E. W. Kleinschmidt,
“Assistant Cashier.”
Mrs. Stimpson had no information as to the details of the transactions of 1924 except as disclosed by the foregoing letter.
The United States Commissioner of Internal Revenue later examined these various transactions; concluded that they involved sales of securities; ascertained the original eost to Mrs. Stimpson of the securities; computed the gains made by reason of said sales; included said gains in the income account of Mrs. Stimpson for the years mentioned; and determined a deficiency of income taxes of' $1,638.05 for the year 1923 and of $4,111.61 for the year 1924. The Board of Tax Appeals affirmed the Commissioner by its decision of May 23,1930 (19 B. T. A. 1059), as amended by its order of February 12,1931. The present petition for review followed.
The question presented for consideration of this court is whether the above-outlined transactions of 1923 and 1924 constituted valid and effective sales of the petitioner’s securities which will support the income tax.
From the elaborate and interesting brief for the petitioner, we gather that the main contentions of petitioner are:
(1) That there was no sale because (a) the bank had no power to make a sale to itself; (b) the bank was a trustee and could not properly earry out the transactions as actually performed; (c) a consideration for the sale was absent.
(2) It is further contended: “The direetion to repurchase her said securities given by the petitioner shows clearly that she did not intend to pass absolute and final title to her securities under her direction to sell. If the Bank had sold on the open market at the marbetable value of her securities, and had bought, at the market value, treasury certificates after the direction of petitioner to sell her securities and purchase certificates, and if the Bank had sold the certificates' on the market and repurchased the identical securities which petitioner held at the time of giving the direction to sell, even then a sale would not have been accomplished, for it is apparent that the petitioner did not intend to part absolutely with title to her seeurities.”
We take up the contentions in reverse order. ^ It is to be noted that the language of the instructions to the bank was to sell the securities owned by petitioner and purchase United States Treasury certificates, and after June, to “purchase back the first mentioned bonds and securities” and pay for the same with the proceeds of the sede of the Treasury certificates. The language is plain.and free from ambiguity. It calls for a sale of seeurities and a purchase of certificates. There is nothing in the language used to suggest an accommodation loan of certificates, as contended by counsel for petitioner. The bank was to be paid a commission for carrying out the transactions. This also indicated the intention to consummate a sale.
One of two inferences would seem to follow: Either that a sale of the securities was' intended; or that some deception was intended and the form of a sale used to cover it up. We prefer to draw the first inference.
Considerable discussion is indulged in by both parties as to the purpose of the transactions involved. This purpose is not direetly disclosed by the record. However, the Board of Tax Appeals was asked to eonsider section 12756 of the Revised Statutes of Missouri, 1919, which reads as follows: “Sec. 12756. Property held June 1st liable for taxes. — Every person Owning or holding proper^y orL th® ffrsi day of June, including all siich property purchased on that day, shall be liable for taxes thereon for the ensuing year.”
We, of course, take judicial notice that United States Treasury Certificates were not taxable by the state of Missouri. •
What weight was given to the statute ^ bearing upon the question of intent of petitioner in entering into the transactions in question we do not know. It is earnestly contended by petitioner that the Board of Tax Appeals ought not to have considered the statute at all, and that this court should not consider it. It need hardly be reiterated that federal courts take judicial notice of the statutes of the several states, and, if such statutes have a bearing upon the question of intent of parties in their various transactions, they may be properly considered, notwithstanding they are not embodied in a stipulated statement of facts. Consideration of this statute in connection with the facts disclosed in the record does not raise any ugly imputation against petitioner as her counsel suggests, Actual sale of property prior to the incidence of a tax thereon is not illegal, even though the sale is made in order to avoid liability. for the tax. Bullen v. Wisconsin, 240 U. S. 625) 36 ct 473, 60 L Ed. 830; United states v. Isham, 17 Wall. 496, 21 L. Ed. 728; Ford v. Nauts (D. C.) 25 F.(2d) 1015; Iowa Bridge Co. Commissioner, 39 F.(2d) 777, 781 )C. C. A 8) Wiggin v. Commissioner (C. C A.) 46 F.(2d) 743, 745.
The othercontention of petitioner, that transaeti°ns in question could not have keen sai0s i>ecanse the necessary elements of a sa^e were lacking, will be briefly considered,
It is contended that the bank, being an agent of petitioner, was not competent to be a purchaser at the sales;- and that such sales were not authorized by the letters of the petitioner to the bank. A sale by an agent, to himself of the property of his principal is not absolutely void, but voidable at the election of the principal. 2 C. J. 702, § 359; Marsh v. Whitmore, 21 Wall. 178, 22 L. Ed. 482; Hoyt v. Latham, 143 U. S. 553, 12 S. Ct. 568, 36 L. Ed. 259; Hammond v. Hopkins, 143 U. S. 224, 12 S Ct. 418, 36 L.Ed. 134; note 80 Am. St. Rep 555, 563.
While it is true that petitioner did not know all the details of the transactions until the fall of 1926, yet since that time, so far as the record shows, there has been no repudiation of them by the petitioner.
Furthermore, it is plainly inferable from the record that petitioner intended that the bant should itself, he the purchaser of her securities. The letter of May 14, 1923, directed the bank to buy hack in June the very same securities which it had sold in May. The obvious way, if not the only way, to accomplish this, was for the bank to be the purchaser in May and hold until Juno. Especially is this true since some of the securities had no quoted market value.
The contention that there was no valid sale because no price or consideration for the sale was fixed by the petitioner is also, in our opinion, devoid of merit.
It is to be noted here, again, that there has been no repudiation of the transactions by petitioner. She knew the price at which the securities were sold in 1923, shortly after the sale was made, and the price at which the securities were sold in .1934, shortly after that sale was made. The record shows no protest as to either.
The fixing of the selling price by the bank at a figure somewhat lower than the approximate market value, of which eounsel for petitioner apparently complains was plainly to petitioner’s advantage rather than to her disadvantage.
In conclusion we may say that we assume that petitioner’s purpose in carrying out the transactions involved was lawful. We give to the transactions the construction which we think the facts and circumstances demand, and which we think the parties themselves placed upon them at the time.
That petitioner’s federal income taxes have been increased by reason of sueh transactions was a risk which petitioner ran when she determined the form and nature of the transactions.
■ We think the order of the Board of Tax Appeals was right, and it is affirmed.
Question: What is the total number of appellants in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer: |