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songer_usc2sect | 153 | 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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 45. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Frederick SMALLAKOFF, Plaintiff-Appellee, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, a non-profit association, TWA/ALPA, a non-profit association, Defendants-Appellants.
No. 86-3761
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Aug. 31, 1987.
Mark F. Kelly, Kelly & McKee, P.A., Tampa, Fla., Felice Busto, Air Line Pilots Ass’n, Intern., Washington, D.C., for plaintiff-appellant.
Stephen J. Wein, Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, Fla., for defendants-appellees.
Before RONEY, Chief Judge, HILL and KRAVITCH, Circuit Judges.
PER CURIAM:
Defendant Air Line Pilots Association, International brought this interlocutory appeal from the district court’s decision that the claims against it for breach of the duty of fair representation under the Railway Labor Act are not barred because a two-year, not a six-month, statute of limitations applies. Following the lead of seven other circuits which apply a six-month limitation to fair representation actions, we reverse the district court’s ruling and remand the case.
Frederick Smallakoff filed a complaint on August 20, 1985, charging the defendant unions with breach of their duty of fair representation under Section 2 of the Railway Labor Act, 45 U.S.C.A. § 151, et seq. The defendant pilots’ union filed a motion to dismiss alleging a statute of limitations bar.
Seven United States Circuit Courts of Appeal have held that a six-month limitations period applies to duty of fair representation cases under the Railway Labor Act. See Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.), cert. denied, 469 U.S. 1016, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984); Sisco v. Consolidated Rail Corp., 732 F.2d 1188 (3d Cir.1984); Triplett v. Brotherhood of Ry., Airline and Steamship Clerks, 801 F.2d 700 (4th Cir.1986); Brock v. Republic Airlines, Inc., 776 F.2d 523 (5th Cir.1985); Ranieri v. United Transportation Union, 743 F.2d 598 (7th Cir.1984); Hunt v. Missouri Pacific RR., 729 F.2d 578 (8th Cir.1984); Barnett v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.) (opinion on rehearing), cert. denied, 469 U.S. 1087, 105 S.Ct. 594, 83 L.Ed.2d 703 (1984). These circuits reason that since there is no limitations period for breach of the duty of fair representation claims in the Railway Labor Act, the appropriate limitations period is the six-month period found in Section 10(b) of the National Labor Relations Act, 29 U.S. C.A. § 160(b). The United States Supreme Court has borrowed this limitations period when addressing a “hybrid” claim for breach of a collective bargaining agreement and breach of the duty of fair representation under Section 301- of the Labor Management Relations Act, 29 U.S.C.A. § 185. DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Although the issue under the Railway Labor Act has not been directly addressed by the United States Supreme Court, its recent decision in West v. Conrail, — U.S. -, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), suggests that if faced with the issue it too would conclude that the six-month period applies.
The district court considered but rejected the holdings of these other circuits and held that the two-year limitations period in 45 U.S.C.A. § 153(r) was more appropriate, following what it considered to be the better reasoning of Henry v. Air Line Pilots Assoc., 585 F.Supp. 376 (N.D.Ga.1984), aff'd on other grounds, 759 F.2d 870 (11th Cir.1985). Of the seven circuits that applied the six-month limitations period, four addressed the rationale of Henry, and specifically rejected the alternative of using the two-year limitations period provided for judicial review of National Railroad Adjustment Board awards found in 45 U.S.C.A. § 153(r). Sisco, 732 F.2d at 1193; Triplett, 801 F.2d at 702; Brock, 776 F.2d at 526; Ranieri, 743 F.2d at 600.
We hold that the district court should have followed the substantial authority that applies the six-month limitations period to duty of fair representation claims under the Railway Labor Act. There is no persuasive reason why the same limitations period should not be uniformly applied throughout the country. After seven United States Circuit Courts of Appeal have addressed arguments such as those presented here and have all held that a six-month statute of limitations period should apply, the other circuits should fall in line. With so many circuits having recently decided the issue in the same way, the bench and bar should be able to depend on the point as settled law without judge-by-judge reexamination of the issue. It is inefficient to create conflicts in such cases that an over-burdened Supreme Court would have to resolve. The matter is totally within legislative control. If the public is dissatisfied with the consistent reasoning of the several courts of appeal, it should look to Congress for correction.
Although the district court denied the motion to dismiss on the limitations ground, and certified its order for interlocutory appeal under 28 U.S.C.A. § 1292(b), it ordered the action administratively closed on September 26. At the time the complaint was filed arbitration was proceeding on Smallakoff s claim against his employer TWA for breach of the collective bargaining agreement. Smallakoff had filed a motion to stay the proceedings in the district court pending the outcome of the arbitration proceedings.
Since the case was administratively closed pending arbitration proceedings, ap-pellees contend the appeal of this issue is premature. It is clear from the pleadings, however, that all of the issues raised will not be resolved by the arbitration proceedings and this case may be reopened at any time. If this action is left pending, the defendant will have to continue to incur expense in monitoring the case and presumably will have to maintain some contingency reserve until the litigation is terminated. The defendant has the right to have this pending action dismissed, if it is barred by the statute of limitations.
The district court simply held that the two-year limitations period applied and denied the defendant’s motion to dismiss. The district court did not decide when the limitations period would begin, or whether the six-month statute would bar the suit. These questions must be resolved on remand.
REVERSED and REMANDED.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 45? Answer with a number.
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.
Andrija ARTUKOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 81-7415.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 4, 1982.
Decided Dec. 1, 1982.
Ronald H. Bonaparte, Los Angeles, Cal, for petitioner.
Allan A. Ryan, Jr., Director, argued, for respondent; Clarice R. Feldman, Los Angé-les, Cal., Rodney G. Smith, Washington, D.C., on brief.
Before GOODWIN and SCHROEDER, Circuit Judges, and SOLOMON District Judge.
The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.
GOODWIN, Circuit Judge.
Andrija Artukovic filed a petition to review an order of the Board of Immigration Appeals revoking his stay of deportation under § 243(h) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1253(h) (as amended 1978) . We vacate the order of the board.
Artukovic entered the United States in 1948 on a visitor’s visa using a false name. He was given two extensions of his temporary stay, but did not depart when they expired.
In 1951, the Immigration and Naturalization Service brought deportation proceedings against Artukovic because, he had entered under a false passport and because he had overstayed his visitor’s visa. Artukovic applied for a suspension of deportation under Section 19(c) of the Immigration Act of 1917 (39 Stat. 874). The Immigration and Naturalization Service hearing officer denied the suspension after a hearing in 1952.
In 1953, the hearing officer’s decision was affirmed by the Board of Immigration Appeals. Because Artukovic had failed to qualify for suspension of deportation under section 19(c), the board ordered him deported. That order was not executed because of a pending request by the Yugoslavian government to extradite Artukovic for trial on 22 counts of . murder. See Artukovic v. Boyle, 140 F.Supp. 245 (S.D.Cal.1956), aff'd sub nom., Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.1957), vacated and remanded, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958).
On January 15, 1959, the United States Commissioner -for the Southern District of California denied extradition because the Yugoslavian government had failed to offer sufficient evidence to support its indictment and there was no evidence to provide reasonable or probable cause to believe that Artukovic was guilty of participation in crimes committed by others in the government. United States v. Artukovic, 170 F.Supp. 383 (S.D.Cal.1959).
On May 22, 1959, the Regional Commissioner of the Immigration and Naturalization Service granted Artukovic a stay of deportation under § 243(h) of the Immigration Act of 1952 on the ground that Artuko-vic would be subject to persecution if he were deported to Yugoslavia.
In 1977, when the commissioner attempted to revoke the stay, Artukovic obtained a district court injunction preventing the government from revoking the stay except by motion before the board to reopen or reconsider under §§ 3.2, 3.8, or 242.22 of Title 8 of the Code of Federal Regulations. Artukovic v. Bell, No. CV-77-2333-IH (C.D.Cal. September 19, 1977) (amended February 27, 1980).
In 1978, Congress amended the Immigration Act to provide that members of Nazi governments of Europe who had persecuted people because of their race, religion, national origin, or political opinion were de-portable and were not eligible for stays under § 243(h). Pub.L. No. 95-549, Title I, §§ 103-04, 92 Stat. 2065-2066 (1978) (codified at 8 U.S.C. §§ 1251(a)(19), 1253(h)). The Immigration and Naturalization Service then moved the board to reconsider Artukovic’s stay. Artukovic argued that the stay could not be revoked without a reopening for a full factual hearing. The board revoked the, stay without a hearing. It held that the factual findings of the 1953 decision were sufficient to determine that Artukovic was no longer eligible for a § 243(h) stay and applied administrative res judicata. This appeal followed.
Artukovic argues that: (1) the 1978 amendment to § 243(h) does not apply to his case; (2) the 1978 amendment is unconstitutional; and (3) the board did-not follow proper procedures in revoking his stay. REACH OF THE 1978 AMENDMENT
Artukovic contends that § 405(a) of the Immigration Act of 1952, 66 Stat. 166 (codified at 8 U.S.C. § 1101, note (1976)), was intended to insure that only the 1917 Immigration Act would apply to all proceedings started before 1952. He argues that because his deportation proceedings began before 1952, the 1978 amendment to § 243(h) does not apply to his case.
Section 405(a), 8 U.S.C. § 1101, note, provides:
(a) “Nothing contained in this Act, [this chapter] unless otherwise specifically provided therein, shall be construed to affect .the validity of any ... proceeding ... or any status ... at the time this Act [this chapter] shall take effect; but as to all such ... proceedings ... the statutes .. . repealed by this Act [this chapter] are, unless otherwise specifically provided therein, hereby continued in force and effect....”
This is merely a “savings clause” to insure that the 1917 Act would continue to apply to cases pending in 1952 if not “otherwise specifically provided” for in the 1952 Act. See Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957). It does not bar Congress from passing legislation that affects the status of anyone whose immigration proceedings began before 1952. Moreover, the legislative history of the 1978 amendment indicates that Congress intended it to apply retroactively to Nazi war criminals who were not deportable under earlier immigration laws. H.Rep. No. 95-1452, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S.Code Cong. & Ad.News 4700, 4702. The 1978 statute applies to this case.
CONSTITUTIONALITY OF THE 1978 AMENDMENT TO § 243(h)
Before 1978, § 243(h) of the Immigration Act of 1952 authorized the Attorney General to stay the deportation of any alien who would be subject to persecution if deported. The 1978 amendment withdrew the protection of § 243(h) from members of the Nazi governments of Europe who had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.” 8 U.S.C. §§ 1253(h)(2)(A) and 1251(a)(19).
Artukovic contends that the 1978 amendment is a bill of attainder and ex post facto law because it withdrew the basis for his stay of deportation. Deportation, however, is not a punishment; it is simply a refusal by the government to harbor persons whom it does not wish to harbor. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913). The prohibition against ex post facto laws and bills of attainder does not apply to deportation statutes. Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (construing ex post facto clause); Rubio de Cachu v. Immigration & Naturalization Serv., 568 F.2d 625, 627-28 (9th Cir. 1977) (bill of attainder clause).
Congress may establish grounds for deportation that apply retroactively. Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957); Mulcahey v. Catalanotte, 353 U.S. 692, 77 S.Ct. 1025, 1 L.Ed.2d 1127 (1957). In this case, Congress has merely withdrawn the basis for Artukovic’s temporary, discretionary stay of deporta-, tion. If Congress may establish retroactive grounds for deportation, it has the privilege of restricting the discretionary relief available to aliens for whom there already exist grounds for deportation. Artukovic has no basis for asserting that the 1978 amendment does not apply to his case.
Artukovic also argues that the word “persecution” in the 1978 amendment is unconstitutionally vague. The term “persecution” appears in at least two other immigration statutes. See 8 U.S.C. §§ 1153(a)(7), 1253(h). This court has interpreted “persecution” in § 1253(h) as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Kovac v. Immigration and Naturalization Service, 407 F.2d 102, 107 (9th Cir.1969). Accord, Moghanian v. U.S. Dept. of Justice, etc., 577 F.2d 141, 142 (9th Cir.1978). The Board of Immigration Appeals defines the term more narrowly in relation to § 1253(h) as threatening a person’s “life or freedom ... on account of his race, religion, nationality, membership in a particular social group, or political opinion.” Moghanian, 577 F.2d at 142. Under these circumstances, Artukovic’s vagueness challenge is not persuasive.
THE BOARD’S PROCEDURES IN REVOKING THE STAY
Artukovic asserts that the board should not have revoked his stay under the 1978 law without first granting him an evidentiary hearing before an immigration judge, whose decision could then be appealed to the board. We agree.
The regulations give the board jurisdiction over motions to reopen or to reconsider its decisions, including stays of deportation. 8 C.F.R. § 3.2. Artukovic’s stay was granted by the. Regional Commissioner, not the board, but the regulations treat decisions made by the commissioner before 1962 as decisions of the board for purposes of reopening or reconsideration. Therefore, the board had jurisdiction over the government’s motion to reconsider the commissioner’s 1959 stay of Artukovic’s deportation.
Although a motion to reopen must offer to prove “new facts” at a “reopened hearing,” 8 C.F.R. § 3.8(a), there is no such requirement for a motion to reconsider. The board interprets this regulation to permit reconsideration rather than reopening where a motion requests the board to apply a change in the law, because there are no “new facts” to prove. Thus the board relied on administrative res judicata in revoking Artukovic’s stay. While the board’s interpretation is entitled to the deference ordinarily given to an agency’s interpretation of its own procedural regulations, see Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 544-55, 98 S.Ct. 1197, 1211-17, 55 L.Ed.2d 460 (1978), reconsideration was not an appropriate procedure in Artukovic’s case. The 1978 law’s creation of new factual categories requires a reopened hearing to determine whether Artu-kovic comes within- the new categories.
The issue raised by the government’s motion to reconsider was whether the 1978 amendment to § 243(h) made Ar-tukovic ineligible for a stay. The government sought to rely on a suspension of deportation hearing, initiated by Artukovic almost thirty years earlier, to prove that Artukovic fell within a statute passed in . 1978. Basic principles of res judicata and of collateral estoppel preclude this procedure. Even where an issue has been actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is generally not precluded where there has been an intervening change in the governing law or where the burden of persuasion has shifted from the time of the first action to the second. See Restatement (Second) of Judgments § 28 (1982). Moreover, in the' administrative law context, the principles of collateral estoppel and res judicata are applied flexibly. See, e.g., United States v. Lasky, 600 F.2d 765, 768 (9th Cir.1979), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).
In the 1952-1953 deportation hearings, the primary issue was whether Artukovic had entered and remained in this country illegally, by entering under a false name and remaining after his visa had expired. The burden was on Artukovic to show that he was entitled to a discretionary suspension of deportation. Artukovic attempted to qualify for suspension on the grounds of economic detriment to his one and one-half year old United States citizen child. The hearing officer found that he had failed to prove serious economic detriment, and that he had not sustained his burden of proving good moral character.
Under the 1978 law, Congress intended that the government prove the alien’s membership in the described class by “clear, convincing and unequivocable [sic] evidence.” H.Rep. No. 95-1452, 95th Cong. 2d Sess. 3 (1978), 1978 U.S.Code Cong. & Ad. News 4712.
The 1978 statute places the burden on the government. The offensive use of collateral estoppel raises a question of fair procedure. There are, of course, cases in which the offensive use of collateral estoppel is both efficient and fair to the parties. See, e.g., Mendoza v. United States, 672 F.2d 1320 (9th Cir.1982). But this is not such a case.
The government may not rely on a hearing convened thirty years ago for a different purpose raising different issues under a different statute as a substitute for the evidence required by the 1978 law. Due process requires that the government must reopen the case for a new hearing at which it must prove by clear and convincing evidence that Artukovic possesses the personal culpability which would bring him within the 1978 law. The 1953 hearings were not, and could not have been, directed to this question.
Vacated.
. Section 243(h), 8 U.S.C. § 1253(h) provides:
“(1) The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(19) of this title) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion;
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A)the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion, ...”
8 U.S.C. § 1253(h), as amended by Act of October 30, 1978, Pub.L. No. 95-549, Title I, § 104, 92 Stat. 2066, and Act of March 17, 1980, Pub.L. No. 96-212, Title II, § 203(e), 94 Stat. 107.
Section 1251(a)(19) provides:
. “Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who.. .
(19) during the period beginning .on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—
(A) the Nazi government of Germany,
(B) any government in any area occupied by the military forces of the Nazi government of Germany,
(C) any government established with the assistance or cooperation of the Nazi government of Germany or
(D) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.”
8 U.S.C. § 1251(a)(19), as amended by Act of October 30, 1978, Pub.L. No. 95-549, Title I, § 103, 92 Stat. 2065.
. We also note that the decision made reference to the then-pending extradition proceeding by the Yugoslavian government. This proceeding, which was subsequently dismissed on the merits, may have been a significant factor in the decision to withhold discretionary relief at that time.
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_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).
McCOY et al. v. PROVIDENCE JOURNAL CO. et al.
No. 4533.
United States Court of Appeals, First Circuit.
July 17, 1951.
Aram A. Arabian, Providence, R. I. (J. F. Murphy, Pawtucket, R. I., on the brief), for appellants.
William H. Edwards, Providence, R. I. (Gerald W. Harrington, Edward F. Hindle, and Edwards & Angell, Providence, R. I., on the brief), for appellees.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and SWEENEY, District Judge.
WOODBURY, Circuit Judge.
This is an appeal from a final judgment permanently enjoining the City Treasurer, who is also the Tax Collector, of Paw-tucket, Rhode Island, “and all persons acting under or in concert with him,” from withholding certain municipal tax abatement resolutions and lists from the plaintiffs, and from preventing them from inspecting those resolutions and lists “at all •reasonable times during regular business hours.”
The plaintiff, Providence Journal Company, is a Rhode Island corporation engaged in the 'business of publishing newspapers in the city of Providence which have a wide circulation throughout the state and a substantial circulation in the adjoining city of Pawtucket. The plaintiff, Sevellon Brown, is the editor and publisher of the Providence Journal Company, and as such is the chief executive officer of that corporation. The plaintiff, Joseph A. Kelly, is a reporter for the Providence Journal Company and the manager of its Pawtucket bureau. Both 'Brown and Kelly are citizens of the United States and of the state of Rhode Island, Brown being a resident of Providence, and Kelly a resident of Pawtucket, where he, and the Providence Journal Company as well, are also tax payers.
The defendant, McCoy, is the Mayor of Pawtucket; the defendant, McAloon, occupies the combined offices of City Treasurer and Collector of Taxes, and the other defendants are the City Clerk, the Assessors of Taxes, and various other executive and legislative officials of that city.
Stated in general terms the complaint alleges that the defendants, acting individually and in concert, have deprived the plaintiffs of rights guaranteed to them by the Federal Constitution in that they have prevented the plaintiffs from gaining access to certain fiscal records of the city of Pawtucket for the purpose of publication, while permitting others in like circumstances to have access to those records for the same purpose.
There is no serious dispute as to the basic facts as found by the court below.
On December 31, 1947, the City Council of the city of Pawtucket, which is a bicameral body consisting of the -Board of Aldermen and the Common Council, met in special session and passed a joint resolution abating real and personal property taxes in the aggregate amount of $89,-377.12, as set forth in a list of tax abate-ments submitted by the Board of Assessors of Taxes which was affixed to and made a part of the resolution. Immediately upon adjournment of this meeting the plaintiff Kelly asked the defendant, Donovan, who was the City Clerk and as such the Clerk of the Board of Aldermen, for permission to see the resolution with its appendant list of abatements. Donovan told Kelly to see him “tomorrow.” Repeatedly during the following weeks reporters for the Providence Journal Company, and other officers and agents of that corporation, made requests, at first orally and later in writing, of various Pawtucket officials for permission to see the list of tax abate-ments, but in every instance the request ■met with postponement, evasion or rebuff.
Affairs remaining in this state of deadlock, Mayor McCoy on Januaray 21, 1948, at a regular meeting of the Board of Aldermen, announced the release of the 1947 tax abatement list to the Pawtucket Times, a daily newspaper published in the city of Pawtucket which is a competitor in that city of the Providence Journal. And then at the same meeting the Board of Aldermen passed an ordinance providing in pertinent part that “No city officer, official, agent or employee shall permit any person to examine any tax abatement record or any copy thereof, nor, shall any such officer, official, agent or employee disclose the contents of any such record to any person, unless such-person has permission of the City Council to examine such record.” This ordinance was passed by the Common Council two- days later and the Mayor immediately approved it.
None of the plaintiffs, and no one else on behalf of the Providence Journal Company, either then or subsequently, applied to the City Council for permission to see the tax abatement record pursuant to this ordinance. Instead on February 7, 1948, mandamus proceedings on the relation of the plaintiffs herein were instituted in the Superior Court of Rhode Island to compeL Mayor McCoy, Treasurer and Tax Collector McAloon, and some of the other defendants, to make the tax abatement record available to the plaintiffs for publication. Thereupon Mayor McCoy immediately called a special session of the City Council for February 9, at which he read the following communication dated February 7, from himself to the Board of Aldermen:
“Gentlemen:
“It has come to my attention that certain-attorneys and individuals engaged in the examination of titles find it necessary to examine tax abatement records of the City of Pawtucket. It is also obvious that any member of the public who has proper interest in such records should be permitted to see the same. Clearly, such persons should not be required to* seek special permission each time the necessity for the examination of such records arises-
“In addition, it has come to my attention that The Pawtucket Times, a newspaper-published in the City of Pawtucket, is desirous of examining these -records for the-purpose of publication in whole or in part as a public service.
“Accordingly, I have called your Honorable Body to meet in special session at this-time (Monday, February 9, 1948 at five o’clock P.M.) to act -upon resolutions pertaining to these matters.
Respectfully,
Ambrose P. McCoy
Mayor.”
Obviously in response to this letter, the 'City Council immediately passed two joint resolutions which were approved by the mayor on the same day. In one of these it was resolved first that permission be .granted “to any person himself or through his agent, engaged in the examination of titles or work of similar nature, to examine tax abatement records pertaining to such titles; Permission is also granted to any person having an interest in such records which is such as would enable him to ■maintain or defend an action for which such records can furnish evidence or necessary information, whether such interest is private, capable of sustaining a suit or a defense in his own personal behalf; or ■capable of sustaining a suit or a defense ■as the representative of the common or public right;” and second it was further resolved, “that no person shall be permitted to examine such records for publication without the express permission of the city council.” In the other it was resolved that permission be granted “to any duly authorized representative of The Pawtucket Times, a newspaper published in the City of Pawtucket, to examine and copy all tax abatement records for publication in whole or in part.”
On these conceded facts no broad, gen■eral issue of freedom of the press is presented, for the defendants, acting in their respective official capacities, have not barred the press at large from access to the tax abatement records of the city of Paw-tucket. They have given access to those records to the Pawtucket Times, but denied like access to its competitor the Providence Journal. To be sure, the denial is not •direct and categorical, but it is none the less effective. Postponement, evasion and rebuff by the city officials are as effective as outright refusal, and application by the Providence Journal, or its officers or agents, to the City Council pursuant to local legislation for permission to see the records -would clearly accomplish nothing, for the District Court found on such abundant evidence as to make challenge futile that the discrimination practiced by the defendants against the Providence Journal was “wilful,” “purposeful,” “arbitrary,” and “capricious,” and that the only reasonable, conclusion to be drawn from the record as a whole was that the enactments of the City Council were but “the crowning achievement” of the discrimination which it had found to exist.
Thus the substance of the plaintiffs’ case, omitting their contention with respect to freedom of the press which in our view it is not necessary to consider, is that they have the right under the law of Rhode Island to inspect and to' publicize the fiscal records of the city of Pawtucket, and that the officials of that city, at first without statutory authority but later under color of city ordinances, have denied them that right while conferring it upon others whose circumstances were similar to their own.
We are confronted, therefore, with an issue of equal protection of the laws, and in keeping with accepted judicial practice we shall confine ourselves to that issue, passing the broader issue of freedom of the press, for in our opinion the case can be disposed of on the narrower issue.
This brings us to the question of jurisdiction.
In the complaint in the instant case, which was -filed on August 19, 1948, federal jurisdiction of the controversy is alleged to rest upon § 24(1), (12), and (14), of the Judicial Code, as amended, 28 U.S.C. (1946 ed.) § 41(1), (12), and (14), now Title 28 U.S.C. §§ 1331, 1343. We think that federal jurisdiction of this controversy is conferred by § 1343, supra, and therefore see no occasion to inquire whether federal jurisdiction might also rest upon other statutory provisions.
By Title 28 U.S.C. § 1343(3), under the heading “Civil Rights”, the district courts are given original jurisdiction without regard to the amount in controversy “of any civil action authorized by law to be commenced by any person: * * *.
“To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” . The Constitution directly limits the power of the states in § 1 of the Fourteenth Amendment wherein it is provided that “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” Also an Act of Congress, 8 U.S. C.A. § 43 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.”
Thus under the Constitution of the United States all persons within the jurisdiction of a State are entitled as of right to the equal protection of its laws, Truax v. Raich, 1915, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, and Congress has implemented that right, first by providing a cause of action for its enforcement, and second by giving the district courts original jurisdiction of that cause of action.
The question then is whether the plaintiffs are persons within the jurisdiction of the State who have been denied by the State the equal protection of its laws. Obviously the individual plaintiffs, and also the corporate plaintiff, are “persons” within the jurisdiction of the State of Rhode Island. Grosjean v. American Press Co., Inc., 1936, 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660, and cases cited. And it is well settled that municipal ordinances and the actions in office of municipal officials constitute state action and are within the prohibition of the Fourteenth Amendment. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lovell v. Griffin, 1938, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949. The question remains whether under local law the plaintiffs have any right to- inspect the municipal records here involved, for if they have no such legal right, but may have access to the records only as a matter of grace or favor, they have no standing here. They cannot be heard to complain of the denial by the state of the equal protection of its laws merely on a showing that another has been fortunate enough to be the recipient of a favor at the hands of municipal officials, or under a local ordinance, which they have been denied.
The District Court held, largely on the basis of the opinions of the State courts in the mandamus proceeding to- which we referred earlier' in this opinion, that the records here involved are public records, and that as such the plaintiffs have the legal right to inspect them. We agree.
In that mandamus proceeding the plaintiffs prevailed in the Superior Court. That Court in an unreported opinion dated May 14, 1948, stated that there were no controlling state statutes, but that under the Common Law as in force in Rhode Island the joint' resolution of December 31, 1947, abating taxes constituted a “public record” of the city of Pawtucket, and that the plaintiffs had the right to inspect that record. It said that In re Caswell’s Request, 1893, 18 R.I. 835, 29 A. 259, 27 L.R.A. 82, stated the “early common-law doctrine”, and that the “modern American cases” reviewed in the “leading” case of Nowack v. Fuller, 1928, 243 Mich. 200, 219 N.W. 749, 60 A.L.R. 1351, which it quoted, established that there could be “no question ‘as to the common-law right of the people at large to inspect public documents and records. The right is based on the interest which citizens necessarily have in the matter to which the records relate. So * * * a citizen and tax payer has a common-law right to inspect the public records * * * to determine if the public money is being properly expended. It is a right that belongs to- his citizenship * * ” Wherefore the Superior Court concluded: “The authorities are clear that at Common Law the members of the public in general have the right to inspect public records.”
The Supreme Court of Rhode Island, however, in a decision not yet reported officially but to be found in Nolan v. McCoy, 73 A.2d 693, 697, reversed. But it did so' for procedural reasons on a motion to quash. It found that the writ was vague, argumentative, and prolix to an extreme degree, and thus lacking in that clarity and precision which is so essential in mandamus, that there was a gross mis-joinder of parties plaintiff in that the Attorney General could not be joined with private persons in a suit brought to vindicate a private right, and that the mandate was defective in that it was directed to the defendants severally whereas their duty in the premises was alleged to be joint.
Thus the Supreme Court of Rhode Island did not reach the merits. Yet it did not ignore the merits altogether. It took occasion to say: “However, it may not be amiss to- say here, in view of the protracted course of this litigation, that this court recognizes the common-law right of inspection of public records by a proper person or his agent provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. This court in Re Caswell’s Request, 18 R.I. 835, 29 A. 259, 27 L.R.A. 82, while recognizing the common-law right of inspection of public records nevertheless directed its clerk to deny, a newspaper a copy of a certain judicial record. Whether or not the right extends further than we have just stated we think is a question upon which we need not express an opinion here.”
Judicial records, such as the court was considering in In re Caswell’s Request referred to above, stand on a different basis from the 'fiscal records of a municipal corporation. Traditionally, courts have exercised the power to impound their records when circumstances warranted such action, but we are not aware of any comparable power of municipal officials with respect to the fiscal records of their municipality. Indeed the existence of such a power would be quite at variance with democratic principles as developed in this country. Thus we take the restrictive language used in In re Caswell’s Request as intended to have application to judicial records, but not by any means as necessarily intended also to apply to the fiscal records of a municipality. This appears to be the construction put upon that language by the State Superior Court in the mandamus proceeding, and we see nothing in the opinion of the Supreme Court of Rhode Island in that proceeding to refute that construction.
At any rate, the decision of the Superior Court standing unreversed as to its exposition of the present local law constitutes for us the law of Rhode Island in the premises under the principle of Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 177, 178, 61 S.Ct. 176, 178, 85 L.Ed. 109, wherein, with citation of authorities, it is said: “The highest state court is the final authority on state law, but it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State. * * * An intermediate state court in declaring and applying the state law is acting as an organ of the 'State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question.” See also West v. American T. & T. Co., 1940, 311 U.S. 223, 236, 337, 61 S.Ct. 179, 183, 85 L.Ed. 139, in -which it is stated that “a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable.” Thus we would have to take the Superior Court’s exposition of the local law even though (as is not the case), from the viewpoint of general law we might not agree.
Hence for present purposes it is established that the records with which we are concerned are “public records”, and as such the individual plaintiffs, if not as members of the general public at least as citizens of Rhode Island, and the corporate plaintiff as a local tax payer, are entitled under state law to inspect those records. And clearly the refusal of the defendants to accord the plaintiffs their right of inspection while granting such right to a competitor, the Pawtucket Times, constitutes a denial of equal protection of the laws which gives rise to a case or controversy within federal jurisdiction under the statutes quoted earlier in this opinion.
What has been said in the course of considering the question of jurisdiction, goes far to dispose of this appeal on the merits. The findings of the District Court to the effect that the plaintiffs were in fact grossly discriminated against by the defendants are amply supported by the evidence.
One further point, however, merits discussion.
The defendants seasonably moved pursuant to Rule IS Fed. Rule Civ.Proc. 28 U.S.C.A. that the complaint be stricken for the reason that it did not comply with the requirements of Rule 8(a) and (e) id. Determination of this motion, and also motions to dismiss for lack of jurisdiction and to “drop improper parties”, was deferred by the court below until the trial, when, by entering a judgment for the plaintiffs, it inferentially denied all motions.
The complaint certainly is argumentative, prolix, redundant and verbose, and attached to it, labeled exhibits, are lengthy letters and affidavits containing evidentiary matter, including purported statements made by some of the defendants, and in the letters even legal arguments supported by citation of cases. It is hard to imagine a pleading more completely at variance with both the letter and the spirit of Rule 8(e)(1) which requires that each averment of a pleading be “simple, concise and direct.” We think the defendants’ motion to strike should have been granted promptly, whereby the issues might have been clarified for the benefit of all concerned. However, we cannot say that the complaint is so badly drawn that the defendants, although no doubt handicapped, were prevented from making their defense, or that either we or the court below, although also seriously handicapped, have been wholly prevented from ferreting out the issues lurking in the verbiage. Therefore, at this late stage of the proceeding, we treat the error as harmless in conformity with the mandate of Rule 61, F.R.C.P. wherein it is provided: “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Other points made by the appellants have been considered, but in so far as they are not covered in what has been said are passed as not of sufficient moment to merit discussion.
The judgment of the District Court is affirmed.
. It is not disputed that if the plaintiffs have the right of inspection they also have the right of publication.
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_district | H | 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".
NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, INC., et al., Plaintiffs, Appellants, v. James E. TIERNEY, et al., Defendants, Appellees.
No. 81-1886.
United States Court of Appeals, First Circuit.
Submitted June 11, 1982.
Decided Sept. 28, 1982.
James M. Smith, Denver, on brief, for plaintiffs, appellants.
James E. Tierney, Atty. Gen., James W. Brannigan, Jr., Deputy Atty. Gen., and William R. Stokes, Asst. Atty. Gen., Augusta, Me., on brief, for defendants, appellees.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.
Challenged here is the facial validity of portions of the Maine Drug Paraphernalia Act, Me.Rev.Stat.Ann.tit. 17A, § 1111-A, an act patterned on the Drug Enforcement Administration’s Model Drug Paraphernalia Act. The district court struck subsection 3(F) of the act, but concluded the act was otherwise facially valid. Plaintiffs, a trade association, wholesalers, and retailers subject to the act, have appealed. The Maine Act is set forth in the appendix to this opinion.
Plaintiffs, pointing to the definitional section (subsection 1 of the Maine Act) which does not expressly state whose intent is relevant in determining whether an item is drug paraphernalia, first argue that the statute exposes a defendant to criminal responsibility for the intent or misdeeds of another. Interpreting a New Hampshire statute which contained a substantially identical definition of drug paraphernalia, see N.H.Rev.Stat.Ann.c. 318-B:1 X-a, we rejected a similar “transferred intent” argument concluding that a fair reading of the statute as a whole, including the portions defining the substantive offenses which focus on the mental state of the accused, indicated the intent referred to is that of the person alleged to have violated the statute. See New England Accessories Trade Association, Inc. v. City of Nashua, 679 F.2d 1, 5-6 (1st Cir. 1982) and cases cited therein. See also Tobacco Accessories and Novelty Craftsmen Merchants Association of Louisiana v. Treen, 681 F.2d 378, 383 (5th Cir. 1982) (“[t]he ‘intended for use’ language applies to the state of mind of the individual charged with the offense of selling, distributing, or displaying drug paraphernalia”); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982) (“[t]o ensure that defendants will not be convicted based on the transferred intent of others ... the . .. states of mind on which the definition of drug paraphernalia relies . . . require proof of general criminal intent of the accused”). It is true that unlike the situation in City of Nashua, we are not here aided by a state supreme court interpretation of the Maine statute, but that does not preclude us from ascertaining the meaning of the Maine statute. It is also true that, unlike the New Hampshire statute, the substantive trafficking offense of the Maine Act contains the “reasonably should know” language of the Model Act, compare N.H.Rev.Stat. Ann.c. 318-B:2 II with Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5, but this difference does not affect our determination that the definitional section itself, subsection 1 of the Maine Act, requires proof of the defendant’s intent. Accord, Levas and Levas v. Village of Antioch, 684 F.2d 446, 452-53 (7th Cir. July 7, 1982); Tobacco Accessories, 681 F.2d at 383; Florida Businessmen, 673 F.2d at 1219; Hejira Corp. v. MacFarland, 660 F.2d 1356, 1366-1367 (10th Cir. 1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559, 561 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982) (No. 81-415); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-929 (6th Cir. 1980), vacated, 451 U.S. 1013, 101 S.Ct. 2998, 68 L.Ed.2d 384 (1981); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289, 292-293 (D.Del.1980).
Once the definitional section is so read, plaintiffs’ further argument that subsection 5' — which makes it “unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know” that it will be used for illegal drug purposes, Me.Rev.Stat.Ann.tit. 17-A, § 1111-A 5 (emphasis added) — permits conviction on a negligence standard looses its foundation. This is because in view of the definitional section — which, as interpreted, renders an item in a seller’s hands drug paraphernalia only if the seller intends it to be used with scheduled drugs — constructive knowledge of the buyer’s purpose alone is not enough for conviction:
“In the context of an alleged sale or delivery of drug paraphernalia, the Act requires the state to prove both (1) that the defendant intended that an item would be used for the production or consumption of controlled substances and also (2) that he either knew, or that he acted in a set of circumstances from which a reasonable person would know, that the buyer of the item would thereafter use it for those purposes. So-called constructive knowledge thus has significance only in a situation where the defendant is selling or delivering items that he intends to be used to produce or consume illicit drugs in the first place. The legitimate merchant who sells innocuous items need make no judgment about the purpose of the buyer based upon the surrounding circumstances. The dealer, on the other hand, who sells innocuous items with the intent that they be used with drugs is, in effect, put on notice by the illicit nature of his activity that he must be careful to conform his conduct to the law. Even the illicit dealer, however, is not held legally responsible ... for guessing what is in the mind of a buyer. The seller is safe as long as he does not actually know the buyer’s purpose and as long as the objective facts that are there for him to observe do not give fair notice that illegal use will ensue.”
Delaware Accessories, 497 F.Supp. at 294. See also Casbah, Inc. v. Thone, 651 F.2d at 561 (following Delaware Accessories).
The foregoing is the interpretation of the act the Maine Attorney General advanced and the lower court adopted. New England Accessories Trade Association v. Tierney, 528 F.Supp. 404 (D.Me.1981). Plaintiffs nevertheless contend the statute is unconstitutionally vague because the standard of intent is itself so vague that it provides no guidance to actors or prosecutors. Plaintiffs claim merchants are unable to discern what mental state on their part— i.e., whether knowledge that an innocuous object may be used with scheduled drugs is enough — will transgress the act. Both “intentionally” and “knowingly” are defined in the Maine criminal code, and we find these definitions sufficiently specific to avoid a due process vagueness problem. While plaintiffs argue that the facts listed in subsection 3 fail to provide black and white standards from which law enforcement officers can determine a merchant’s intent, law enforcement always requires the exercise of some judgment, Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), and the assessment called for under the Maine Act is no different in kind than that ordinarily encountered. Delaware Accessories, 497 F.Supp. at 295. In New England Accessories, 679 F.2d at 6, we rejected a similar attack leveled against a list containing 13 of the same 14 factors, and we adhere to that view.
Plaintiffs’ last argument — that subsection 1(K) creates a mandatory presumption that the objects listed therein are drug paraphernalia — fails. The list gives examples of items which, depending on the circumstances — actual use or the accused’s intent — may be drug paraphernalia.
Affirmed.
APPENDIX
§ 1111-A. Sale and use of drug paraphernalia
1. As used in this section the term “drug paraphernalia” means all equipment, products and materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a scheduled drug in violation of this chapter or Title 22, section 2383. It-includes, but is not limited to:
A. Kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a scheduled drug or from which a scheduled drug can be derived;
B. Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing scheduled drugs;
C. Isomerization devices used or intended for use in increasing the potency of any species of plant which is a scheduled drug;
D. Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of scheduled drugs;
E. Scales and balances used or intended for use in weighing or measuring scheduled drugs;
F. Dilutents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used or intended for use in cutting scheduled drugs;
G. Separation gins and sifters, used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
H. Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding scheduled drugs;
I. Capsules, balloons, envelopes and other containers used, or intended for use in packaging small quantities of scheduled drugs;
J. Containers and other objects used or intended for use in storing or concealing scheduled drugs; and
K. Objects used or intended for [sic] in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:
(1) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
(2) Water pipes;
(3) Carburetion tubes and devices;
(4) Smoking and carburetion masks;
(5) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette that has become too small or too short to be held in the hand;
(6) Miniature cocaine spoons and cocaine vials;
(7) Chamber pipes;
(8) Carburetor pipes;
(9) Electric pipes;
(10) Air-driven pipes;
(11) Chillums;
(12) Bongs; or
(13) Ice pipes or chillers.
2. For purposes of this section, drug paraphernalia does not include hypodermic apparatus. Possession of, furnishing or trafficking in hypodermic apparatus constitute separate offenses under sections 1110 and 1111.
3. In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:
A. Statements by an owner or by anyone in control of the object concerning its use;
B. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any scheduled drug;
C. The proximity of the object, in time and space, to a direct violation of this chapter;
D. The proximity of the object to scheduled drugs;
E. The existence of any residue of scheduled drugs on the object;
F. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use as drug paraphernalia;
G. Instructions, oral or written, provided with the object concerning its use;
H. Descriptive materials accompanying the object which explain or depict its use;
I. National and local advertising concerning its use;
J. The manner in which the object is displayed for sale;
K. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
L. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
M. The existence and scope of legitimate uses for the object in the community; and
N. Expert testimony concerning its use.
4. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383.
5. It is unlawful for any person to traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a scheduled drug in violation of this chapter or Title 22, section 2383.
6. It is unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects intended for use as drug paraphernalia.
7. Violation of subsection 4 is a civil violation for which a forfeiture of not more than $200 may be adjudged.
8. Violation of subsection 5 or 6 is a Class E crime, except that, if the actor trafficks or furnishes drug paraphernalia to a child under 16 years of age, it is a Class D crime.
9. Any drug paraphernalia possessed in violation of this section is declared to be contraband and may be seized and confiscated by the State.
. Plaintiffs argue that those federal courts which have read state statutory drug paraphernalia definitions patterned after the Model Act as referring to the intent of the accused have engaged in an impermissible process of placing a limiting construction on an act, a function a federal court has no authority to perform when reviewing a state statute. We disagree. It is the meaning of the Maine statute as written which both the district court and we have sought to ascertain through the use of traditional and appropriate canons of statutory interpretation. See Casbah, Inc. v. Thone, 651 F.2d 551, 557-558 (8th Cir. 1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982).
. Courts reaching this result have relied on the general principle of statutory interpretation that statutes should be read to avoid an unconstitutional result, see, e.g., Record Revolution, 638 F.2d at 928-929; Delaware Accessories v. Gebelein, 497 F.Supp. at 292; the structure of the Model Act — the initial ambiguity in § 1, viewed alone, being explained by the fact that it was drafted to be appropriate in the context of a number of different prohibited activities including possession (subsection 4 of the Maine Act), manufacturing or selling (subsection 5), and advertising (subsection 6), all of which substantive offenses focus on the mental state of the violator, see, e.g., Casbah, Inc. v. Thone, 651 F.2d at 559; Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. at 292 and n.1; and the Model Act comments indicating the relevant intent for purposes of the definitional section is that of the defendant, see, e.g., Delaware Accessories, 497 F.Supp. at 293.
. “1. ‘Intentionally.’
“A. A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result.
“B. A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes that they exist.
“2. ‘Knowingly.’
“A. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
“B. A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.”
Me.Rev.Stat.Ann.tit. 17-A, § 35.
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_initiate | A | 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.
The CARBORUNDUM COMPANY, Plaintiff-Appellant, v. NATIONAL TEA COMPANY, Defendant-Appellee.
No. 12286.
United States Court of Appeals Seventh Circuit.
Dec. 29, 1958.
William H. Webb, Pittsburgh, Pa., Edward C. Grelle, Chicago, Ill., Webb, Mackey & Burden, Pittsburgh, Pa., Brown, Jackson, Boettcher & Dienner, Chicago, Ill., of counsel, for appellant.
Harry C. Alberts, Chicago, Ill., Richard Blum, New York City, Mock & Blum, New York City, of counsel, for appellee.
Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
DUFFY, Chief Judge.
Plaintiif claims infringement of Eastman Patent No. 2,650,158, dated August 25, 1953, which relates to scouring or scrubbing implements. Defendant is a large vendor of the accused scrubbing implements which are manufactured by Scrubbee Products Corporation. Although not a formal party, Scrubbee has-conducted the defense to this suit and has been in complete control thereof. Except in one minor respect, the trial court adopted defendant’s proposed findings, and conclusions. The Court dismissed the complaint “because of invalidity of Eastman Patent No. 2,650,158 and non-infringement thereof.”
The patent in suit relates to scrubbing-pads which are suitable for general household scouring and cleaning purposes, such as the scouring and cleaning of pots and pans and other kitchen utensils. The pad is composed of materials which, are resistant to deterioration by hot water up to 180° F., soap, detergents, fats, and grease, such as are found in dishwater. It features a pad or supporting-layer of elastic, compressible, flexible and pliable material provided with a surface-layer of comminuted abrasive material embedded in an adhesive which secures-the abrasive layer to the backing. This-backing pad or layer is specified as “foam rubber” in both the specifications and the claims. Claims I and III are typical and. and appear in the margin.
The patented scrubbing implements are manufactured under a license to Rubber-Scrubber Corporation. Carborundum and Rubber-Scrubber developed a new business based on the patented pad. An officer of Scrubbee Products Corporation which manufactures the accused pad, testified that the thing that impelled him to get into the present business of his corporation was coming in contact with the patented product manufactured by Rubber-Scrubber Corporation. Others, like Scrubbee, started the manufacture of similar pads. Plaintiff claims that the only infringer of consequence other than Scrubbee has now taken a license.
The patent points out that the object of the invention is to provide an improved scouring implement avoiding the disadvantages of the prior art scouring implements. The patent states: “The abrasive article or scouring implement of this invention differs from articles heretofore used in that the entire article, including the base or supporting layer and the superposed adhesive layer containing abrasive material, is elastic, flexible, compressible and pliable and also resistant to deterioration by hot water, soap, detergents * *
Foam rubber is defined in the patent as encompassing not only foam rubber made from a natural rubber latex, but also from rubber materials composed of or containing the various synthetic rubber latices in a foamed condition, and other types of synthetic rubbers or elastomers either alone or blended in various proportions with one another or with a natural rubber latex.
The District Court concluded the patent in suit is void under 35 U.S.C.A. §§ 102, 103. In another conclusion of law, the Court held: “The Eastman patent is void over the prior art, if its scope covers the accused pad.” We hold that especially in view of the file wrapper history, the claims of the patent in suit must be narrowly construed and as thus construed, such claims are valid.
The big question in this suit is whether the accused pad infringes. To understand the restricted scope of the claims, a reference to the file wrapper history is important and enlightening. The application for the patent in suit had a somewhat rough road to travel before the patent was issued.
Eastman filed an application in 1947 in which he made no distinction between “foam rubber” and “sponge rubber” as suitable material for making the pad o.r backing layer. He also attempted to include various types of adhesive and the use of a plurality of layers of abrasive particles. The claims in the 1947 application were rejected. A second application was filed by Eastman in 1949 which also was rejected on the prior art.
A third application was filed in 1950. Eastman disclaimed sponge rubber and limited his disclosure to foam rubber. In the first office letter dated February 21, 1951, the examiner rejected the eight original claims upon prior patents to Wooddell and Sawyer, and also cited a patent to Carter to show the use of foam rubber in a scouring pad. Eastman then cancelled original claims 1, 2, 6 and 7 and inserted the word “single” in each of the four remaining claims so as to read “ * * * a single layer of abrasive grains secured to the face of the foam rubber * * * ”. The examiner again rejected the restricted claims and on March 20, 1952, Eastman further limited these four claims by inserting “substantially one grit size in thickness,” and also inserting the word “thermosetting” in original claims 3, 4 and 8. In the argument on this amendment, Eastman represented to the Patent Office “Firstly, the claims now specify that the adhesive is a resin-modified rubber base adhesive in which the resin is a thermosetting resin. Secondly, the claims now specify that the abrasive layer which is adhesively secured to the foam rubber backing is ‘substantially one grit size in thickness.’ ” Thereafter the application was allowed.
The District Court found non-infringement on three principal grounds: 1) polyurethane is not an equivalent for foam rubber; 2) the accused pads are constructed with several superposed layers of abrasive granules which is not the same or the equivalent of the single layer of the Eastman patent, and 3) the resin ingredient of the adhesive is not thermo-setting and is not an equivalent for the resin ingredient of Eastman’s claims.
Plaintiff argues that the backing in the accused pads is not just “polyurethane” but is a: “polyurethane foam” which plaintiff says is foam rubber or at least the equivalent thereof. However, the record contains sufficient evidence to sustain the Court’s finding that polyurethane is not an equivalent for foam rubber. The fact that polyurethane was an elastomer is without significance. Professor Bruins testified that sponge rubber which Eastman expressly excluded, is also an elastomer.
A very close question is presented as to whether the accused pads have a single layer of abrasive granules, substantially one grit size in thickness. The record contains considerable evidence to prove that the agreed specimens of the accused pads infringe in this respect. However, there is substantial evidence to the contrary, and the District Court found that in the accused pads there “ * * * were several superposed layers of abrasive granules which is not the equivalent for the single flat layer of abrasive of the Eastman patent.”
It is understandable why such conflicting evidence is present. On oral argument we were shown the abrasive used. The grains are so fine that a small quantity of this abrasive has the appearance and feel of dust. Furthermore, in making the pads, the abrasive is affixed to a material, the cellular surface of which is rough and uneven. Examinations of various specimens were made with powerful microscopes, and different conclusions were reached. The finding on this point could have been either way. Under the circumstances we must approve the trial court’s findings that the accused pad does not have a single layer of abrasive granules, substantially one grit size in thickness.
A third point on which the District Court based its findings and conclusions of non-infringement is that the resin ingredient of the adhesive in the accused pad is not thermosetting. The evidence shows that while a thermo plastic material will melt when exposed to heat, a thermoset material will not.
Each of the four adhesive formulas of the Eastman patent requires the use of heat in order to result in the thermoset condition. An expert witness testified that the entire disclosure of the Eastman patent required the use of heat, and that the purpose of using the thermoset-ting resin which is mentioned in the Eastman claims, is to convert it to the thermoset condition by the heating step. The trial court specifically found that by means of the heating step described in the Eastman patent, the original thermo-setting resin is chemically changed to the thermoset condition.
In making the accused pad, the adhesive solution is mixed with abrasive granules at ordinary room temperature of 70° to 75°. The solvent of the solution is evaporated at the same temperature which leaves a dry surface layer of adhesive and abrasive granules. Due to the absence of an application of heat, the adhesive in the finished pad remains non-thermoset. We think the District Court was correct in holding non-infringement in this respect.
Because infringement of the claims of the patent in suit was not established, the judgment below dismissing the complaint is
Affirmed.
. “1. A scouring implement comprising a foam rubber backing and a single layer of abrasive granules substantially one grit size in thickness adhesively secured thereto by means of a water insoluble adhesive having permanent flexibility and elongation, said adhesive comprising a blend of rubber and thermosetting resin, said foam rubber backing being of sufficient thickness to impart compressibility and handling strength to the article.
“3. A scouring implement comprising a foam rubber backing of sufficient thickness to impart compressibility and handling strength to the article and a single layer of abrasive granules substantially one grit size in thickness adhesively secured thereto by means of a water-insoluble adhesive comprising a blend of' rubber and a phenol aldehyde resinous, condensation product.”
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_counsel2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellees, v. Mark A. LEVINE, Commissioner, Division of Correction, Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellants. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of the Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellants, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellees. Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellants, v. Mark A. LEVINE, Commissioner, Division of Correction; Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellees. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellees, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellants.
Nos. 78-6416 to 78-6419.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 14, 1978.
Decided Dec. 13, 1978.
Stephen B. Caplis, Asst. Atty. Gen., George A. Nilson, Deputy Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Maryland and Clarence W. Sharp, Chief, Criminal Division, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants.
Nevette Steele, Jr., Baltimore, Md. (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., on brief), Richard L. North, Baltimore, Md. (Mary S. Elcano, Lawrence B. Coshnear, Sandra D. Boteler, Legal Aid Bureau, Inc., Richard G. Fish-man, Keystone Legal Services, Baltimore, Md., on brief), Paul D. Bekman, Baltimore, Md. (Kaplan, Heyman, Greenberg, Engleman & Belgrad, P.A., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, and PHILLIPS, Circuit Judges, sitting En Banc.
PER CURIAM:
These are appeals and cross-appeals from decisions of the District Court of Maryland in which it was concluded that the conditions in two penal institutions in Maryland were in violation of the Eighth Amendment’s command against cruel and unusual punishment. Johnson v. Levine, 450 F.Supp. 648 (D.Md.1978); Nelson v. Collins, 455 F.Supp. 727 (D.Md.1978).
In Hite v. Leeke, 564 F.2d 670 (4th Cir. 1977), we held that “double-celling,” the housing of two prisoners in a cell initially designed for single occupancy, was not itself a violation of the Constitution. It, of course, may be a relevant factor when other consequences of overcrowding create deprivations or impose unusual restrictions and disadvantages upon the prison population.
In their opinions, the district judges placed great emphasis upon “double-celling,” which was extensive in both institutions, but other deprivations were also shown. The “double-celling” was clearly a consequence of overcrowding, and the overcrowding had other consequences. The physical and personnel resources of both institutions were taxed. The overcrowding limited opportunities for recreation, for instruction and rehabilitation, complicated the maintenance of sanitation, required meal service in three separate shifts and probably contributed to a high level of violence and psychological injury to some prisoners. The medical facilities and staffs were also overtaxed, and on cross-appeals there is a complaint that medical care itself was constitutionally deficient. With the elimination of substantial overcrowding, however, the deficiencies of the medical facilities, staffs and services will be diminished.
Under the totality of all of the circumstances, we conclude that the district judges properly found a constitutional violation warranting judicial direction that the overcrowding be eliminated. Overcrowding, with all of its consequences, can reach such proportions that the impact of the aggregate effect amounts to cruel and unusual punishment. We believe that the district judges reasonably found that the point had been reached here. Hence, we affirm the entry of injunctive relief directed to elimination of the overcrowded conditions, and the denial of injunctive relief directed to specific areas of alleged deficiencies such as medical care.
The district judges directed accelerating steps for the elimination of overcrowding by April 1, 1979. Maryland, however, has come forward with a detailed plan involving the construction of a new facility, incorporating the previous planned conversion of another, and the early release of prisoners thought appropriate for release which will accomplish the objective of elimination of overcrowded conditions by June 1, 1980.
The district judges imposed a short compliance timetable. It was appropriate, of course, to emphasize the fact that the situation was serious, and to require that remedial steps should be undertaken promptly. The release of prisoners properly subject to parole may proceed apace, but we are convinced that the overcrowded conditions cannot be completely eliminated without the construction and utilization of a new facility, which Maryland proposes to have available by June 1, 1980. Since the constitutional violation here is not as extreme or as shocking as in some of the reported cases, and since Maryland’s plan is practical and reasonable and will achieve the required objective of elimination of overcrowding in its penal institutions, we think its plan and its schedule deserve judicial approval.
In addition to the claims respecting the general prison populations, in Johnson the court found the conditions of imprisonment in the Special Confinement Area, a section housing mentally disturbed prisoners, were so severe they constituted cruel and unusual punishment. The judge ordered the SCA closed as soon as the inmates could be moved to state mental institutions. In Nelson the court found extended confinement in the punitive isolation unit violated the Eighth Amendment. The judge imposed limitations on the use of the cells. We affirm these findings of constitutional deprivation and the grant of appropriate relief.
The findings of constitutional overcrowding are affirmed. The decree in Johnson, insofar as it affects the Special Confinement Area, and the decree in Nelson, insofar as it deals with punitive isolation, are both affirmed. The denial of specific relief in other respects is affirmed. The cases are remanded to the district court with instructions to fashion new decrees which will incorporate Maryland’s plan and its schedule for the elimination of overcrowding in the two penal institutions.
Judge Russell and Judge Widener dissent from the conclusion that a deficiency of constitutional proportion was shown. They reserve the right later to file an opinion expressing their views.
AFFIRMED IN PART AND REMANDED.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
sc_casesource | 023 | 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.
DelCOSTELLO v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS et al.
No. 81-2386.
Argued April 25, 1983
Decided June 8, 1983
Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., post, p. 172, and O’Connor, J., post, p. 174, filed dissenting opinions.
William H. Zinman argued the cause for petitioner in No. 81-2386. With him on the briefs was Paul A. Levy. Robert M. Weinberg argued the cause for petitioners in No. 81-2408. With him on the briefs were Michael H. Gottesman, Bernard Kleiman, Carl Frankel, and Laurence Gold.
Bernard S. Goldfarb argued the cause for respondents in No. 81-2386 and filed a brief for respondent Anchor Motor Freight, Inc. Isaac N. Groner, by appointment of the Court, 459 U. S. 1143, argued the cause and filed a brief for respondents in No. 81-2408. Carl S. Yaller and Bernard W. Ruben-stein filed a brief for respondent Local 557, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America in No. 81-2386.
Together with No. 81-2408, United Steelworkers of America, AFL-CIO-CLC, et al. v. Flowers et al., on certiorari to the United States Court of Appeals for the Second Circuit.
Steven C. Kahn and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal in both cases. Alan B. Morrison filed a brief for Teamsters for a Democratic Union as amicus curiae urging reversal in No. 81-2386.
David Previant, Robert M. Baptiste, and Roland P. Wilder, Jr., filed a brief for the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America as amicus curiae urging affirmance in No. 81-2386.
Michael L. Boylan and Teddy B. Gordon filed a brief for Gordon L. Higgins as amicus curiae in No. 81-2408.
Justice Brennan
delivered the opinion of the Court.
Each of these cases arose as a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective-bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance-and-arbitration proceedings. See infra, at 162; Bowen v. USPS, 459 U. S. 212 (1983); Vaca v. Sipes, 386 U. S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976). The issue presented is what statute of limitations should apply to such suits. In United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 (1981), we held that a similar suit was governed by a state statute of limitations for vacation of an arbitration award, rather than by a state statute for an action on a contract. We left two points open, however. First, our holding was limited to the employee’s claim against the employer; we did not address what state statute should govern the claim against the union. Second, we expressly limited our consideration to a choice between two state statutes of limitations; we did not address the contention that we should instead borrow a federal statute of limitations, namely, § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b). These cases present these two issues. We conclude that § 10(b) should be the applicable statute of limitations governing the suit, both against the employer and against the union.
I
A
Philip DelCostello, petitioner in No. 81-2386, was employed as a driver by respondent Anchor Motor Freight, Inc., and represented by respondent Teamsters Local 557. On June 27,1977, he quit or was discharged after refusing to drive a tractor-trailer that he contended was unsafe. He took his complaint to the union, which made unsuccessful informal attempts to get DelCostello reinstated and then brought a formal grievance under the collective-bargaining agreement. A hearing was held before a regional joint union-management committee. The committee concluded that the grievance was without merit. DelCostello was informed of that decision in a letter dated August 19, 1977, forwarding the minutes of the hearing and stating that the minutes would be presented for approval at the committee’s meeting on September 20. DelCostello responded in a letter, but the minutes were approved without change. Under the collective-bargaining agreement, the committee’s decision is final and binding on all parties.
On March 16, 1978, DelCostello filed this suit in the District of Maryland against the employer and the union. He alleged that the employer had discharged him in violation of the collective-bargaining agreement, and that the union had represented him in the grievance procedure “in a discriminatory, arbitrary and perfunctory manner,” App. in No. 81-2386, p. 19, resulting in an unfavorable decision by the joint committee. Respondents asserted that the suit was barred by Maryland’s 30-day statute of limitations for actions to vacate arbitration awards. The District Court disagreed, holding that the applicable statute was the 3-year state statute for actions on contracts. 510 F. Supp. 716 (1981). On reconsideration following our decision in Mitchell, however, the court granted summary judgment for respondents, concluding that Mitchell compelled application of the 30-day statute to both the claim against the employer and the claim against the union. 524 F. Supp. 721 (1981). The Court of Appeals affirmed on the basis of the District Court’s order. 679 F. 2d 879 (CA4 1982) (mem.).
B
Donald C. Flowers and King E. Jones, respondents in No. 81-2408, were employed as craft welders by Bethlehem Steel Corp. and represented by petitioner Steelworkers Local 2602. In 1975 and 1976 respondents filed several grievances asserting that the employer had violated the collective-bargaining agreement by assigning certain welding duties to employees in other job categories and departments of the plant, with the result that respondents were laid off or assigned to noncraft work. The union processed the grievances through the contractually established procedure and, failing to gain satisfaction, invoked arbitration. On February 24, 1978, the arbitrator issued an award for the employer, ruling that the employer’s job assignments were permitted by the collective-bargaining agreement.
Respondents filed this suit in the Western District of New York on January 9, 1979, naming both the employer and the union as defendants. The complaint alleged that the company’s work assignments violated the collective-bargaining agreement, and that the union’s “preparation, investigation and handling” of respondents’ grievances were “so inept and careless as to be arbitrary and capricious,” in violation of the union’s duty of fair representation. App. in No. 81-2408, p. 10. The District Court dismissed the complaint against both defendants, holding that the entire suit was governed by New York’s 90-day statute of limitations for actions to vacate arbitration awards. The Court of Appeals reversed on the basis of its prior holding in Mitchell v. United Parcel Service, Inc., 624 F. 2d 394 (CA2 1980), that such actions are governed by New York’s 6-year statute for actions on contracts. Flowers v. Local 2602, United Steel Workers of America, 622 F. 2d 573 (CA2 1980) (mem.). We granted certiorari and vacated and remanded for reconsideration in light of our reversal in Mitchell. Steelworkers v. Flowers, 451 U. S. 965 (1981). On remand, the Court of Appeals rejected the argument that the 6-month period of § 10(b) applies. Accordingly, following our decision in Mitchell, it applied the 90-day arbitration statute and affirmed the dismissal as to the employer. As to the union, however, the court reversed, concluding that the correct statute to apply was New York’s 3-year statute for malpractice actions. 671 F. 2d 87 (CA2 1982).
C
In this Court, petitioners in both cases contend that suits under Vaca v. Sipes, 386 U. S. 171 (1967), and Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976), should be governed by the 6-month limitations period of § 10(b) of the National Labor Relations Act, 29 U. S. C. § 160(b). Alternatively, the Steelworkers, petitioners in No. 81-2408, argue that the state statute for vacation of arbitration awards should apply to a claim against a union as well as to one against an employer. We granted certiorari in both cases and consolidated them for argument. 459 U. S. 1034 (1982).
l-H
A
As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit. In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to “borrow” the most suitable statute or other rule of timeliness from some other source. We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law. “The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles.” Holmberg v. Armbrecht, 327 U. S. 392, 395 (1946). See, e. g., Runyon v. McCrary, 427 U. S. 160, 180-182 (1976); Chevron Oil Co. v. Huson, 404 U. S. 97, 101-105 (1971); Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696 (1966); Chattanooga Foundry v. Atlanta, 203 U. S. 390 (1906); Campbell v. Haverhill, 155 U. S. 610 (1895).
In some circumstances, however, state statutes of limitations can be unsatisfactory vehicles for the enforcement of federal law. In those instances, it may be inappropriate to conclude that Congress would choose to adopt state rules at odds with the purpose or operation of federal substantive law.
“[T]he Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. ‘Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide.’” Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 367 (1977), quoting Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 465 (1975).
Hence, in some cases we have declined to borrow state statutes but have instead used timeliness rules drawn from federal law — either express limitations periods from related federal statutes, or such alternatives as laches. In Occidental, for example, we declined to apply state limitations periods to enforcement suits brought by the Equal Employment Opportunity Commission under Title VII of the 1964 Civil Rights Act, reasoning that such application might unduly hinder the policy of the Act by placing too great an administrative burden on the agency. In McAllister v. Magnolia Petroleum Co., 357 U. S. 221 (1958), we applied the federal limitations provision of the Jones Act to a seaworthiness action under general admiralty law. We pointed out that the two forms of claim are almost invariably brought together. Hence, “with an eye to the practicalities of admiralty personal injury litigation,” id., at 224, we held inapplicable a shorter state statute governing personal injury suits. Again, in Holmberg, we held that state statutes of limitations would not apply to a federal cause of action lying only in equity, because the principles of federal equity are hostile to the “mechanical rules” of statutes of limitations. 327 U. S., at 396.
Auto Workers v. Hoosier Cardinal Corp. was a straightforward suit under § 301 of the Labor Management Relations Act, 29 U. S. C. § 185, for breach of a collective-bargaining agreement by an employer. Unlike the present cases, Hoosier did not involve any agreement to submit disputes to arbitration, and the suit was brought by the union itself rather than by an individual employee. We held that the suit was governed by Indiana’s 6-year limitations period for actions on unwritten contracts; we resisted the suggestion that we establish some uniform federal period. Although we recognized that “the subject matter of § 301 is ‘peculiarly one that calls for uniform law/” 383 U. S., at 701, quoting Teamsters v. Lucas Flour Co., 369 U. S. 95, 103 (1962), we reasoned that national uniformity is of less importance when the case does not involve “those consensual processes that federal labor law is chiefly designed to promote — the formation of the collective agreement and the private settlement of disputes under it,” 383 U. S., at 702. We also relied heavily on the obvious and close analogy between this variety of § 301 suit and an ordinary breach-of-contract case. We expressly reserved the question whether we would apply state law to § 301 actions where the analogy was less direct or the relevant policy factors different:
“The present suit is essentially an action for damages caused by an alleged breach of an employer’s obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other §301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide, and we indicate no view whatsoever on that question. See, e. g., Holmberg v. Armbrecht, 327 U. S. 392....” 383 U. S., at 705, n. 7.
Justice Stewart, who wrote the Court’s opinion in Hoosier, took this caution to heart in Mitchell. He concurred separately in the judgment, arguing that the factors that compelled adoption of state law in Hoosier did not apply to suits under Vaca and Hines, and that in the latter situation we should apply the federal limitations period of § 10(b). 451 U. S., at 65-71. As we shall explain, we agree.
B
It has long been established that an individual employee may bring suit against his employer for breach of a collective-bargaining agreement. Smith v. Evening News Assn., 371 U. S. 195 (1962). Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration remedies provided in the collective-bargaining agreement. Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965); cf. Clayton v. Automobile Workers, 451 U. S. 679 (1981) (exhaustion of intraunion remedies not always required). Subject to very limited judicial review, he will be bound by the result according to the finality provisions of the agreement. See W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 764 (1983); Steelworkers v. Enterprise Corp., 363 U. S. 593 (1960). In Vaca and Hines, however, we recognized that this rule works an unacceptable injustice when the union representing the employee in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation. In such an instance, an employee may bring suit against both the employer and the union, notwithstanding the outcome or finality of the grievance or arbitration proceeding. Vaca v. Sipes, 386 U. S. 171 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976); United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 (1981); Bowen v. USPS, 459 U. S. 212 (1983); Czosek v. O’Mara, 397 U. S. 25 (1970). Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. “Yet the two claims are inextricably interdependent. ‘To prevail against either the company or the Union,... [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.’” Mitchell, supra, at 66-67 (Stewart, J., concurring in judgment), quoting Hines, supra, at 570-571. The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straightforward breach-of-contract suit under §301, as was Hoosier, but a hybrid § 301/fair representation claim, amounting to “a direct challenge to ‘the private settlement of disputes under [the collective-bargaining agreement].”’ Mitchell, supra, at 66 (Stewart, J., concurring in judgment), quoting Hoosier, 383 U. S., at 702. Also unlike the claim in Hoosier, it has no close analogy in ordinary state law. The analogies suggested in Mitchell both suffer from flaws, not only of legal substance, but more important, of practical application in view of the policies of federal labor law and the practicalities of hybrid § 301/fair representation litigation.
In Mitchell, we analogized the employee’s claim against the employer to an action to vacate an arbitration award in a commercial setting. We adhere to the view that, as between the two choices, it is more suitable to characterize the claim that way than as a suit for breach of contract. Nevertheless, the parallel is imperfect in operation. The main difference is that a party to commercial arbitration will ordinarily be represented by counsel or, at least, will have some experience in matters of commercial dealings and contract negotiation. Moreover, an action to vacate a commercial arbitral award will rarely raise any issues not already presented and contested in the arbitration proceeding itself. In the labor setting, by contrast, the employee will often be unsophisticated in collective-bargaining matters, and he will almost always be represented solely by the union. He is called upon, within the limitations period, to evaluate the adequacy of the union’s representation, to retain counsel, to investigate substantial matters that were not at issue in the arbitration proceeding, and to frame his suit. Yet state arbitration statutes typically provide very short times in which to sue for vacation of arbitration awards. Concededly, the very brevity of New York’s 90-day arbitration limitations period was a major factor why, in Mitchell, we preferred it to the 6-year statute for breach of contract, 451 U. S., at 63-64; but it does not follow that because 6 years is too long, 90 days is long enough. See also Hoosier, swpra, at 707, n. 9. We conclude that state limitations periods for vacating arbitration awards fail to provide an aggrieved employee with a satisfactory opportunity to vindicate his rights under § 301 and the fair representation doctrine.
Moreover, as Justice Stevens pointed out in his opinion in Mitchell, analogy to an action to vacate an arbitration award is problematic at best as applied to the employee’s claim against the union:
“The arbitration proceeding did not, and indeed, could not, resolve the employee’s claim against the union. Although the union was a party to the arbitration, it acted only as the employee’s representative; the [arbitration panel] did not address or resolve any dispute between the employee and the union.... Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails.” 451 U. S., at 73 (opinion concurring in part and dissenting in part) (footnotes omitted).
Justice Stevens suggested an alternative solution for the claim against the union: borrowing the state limitations period for legal malpractice. Id., at 72-75; see post, at 174 (Stevens, J., dissenting);post, at 175 (O’Connor, J., dissenting). The analogy here is to a lawyer who mishandles a commercial arbitration. Although the short limitations period for vacating the arbitral award would protect the interest in finality of the opposing party to the arbitration, the misrepresented party would retain his right to sue his lawyer for malpractice under a longer limitations period. This solution is admittedly the closest state-law analogy for the claim against the union. Nevertheless, we think that it too suffers from objections peculiar to the realities of labor relations and litigation.
The most serious objection is that it does not solve the problem caused by the too-short time in which an employee could sue his employer under borrowed state law. In a commercial setting, a party who sued his lawyer for bungling an arbitration could ordinarily recover his entire damages, even if the statute of limitations foreclosed any recovery against the opposing party to the arbitration. The same is not true in the § 301/fair representation setting, however. vWe held in Vaca, and reaffirmed this Term in Bowen, that the union may be held liable only for “increases if any in [the employee’s] damages caused by the union’s refusal to process the grievance.” 386 U. S., at 197-198; 459 U, S., at 223-224; see Czosek, 397 U. S., at 29. Thus, if we apply state limitations periods, a large part of the damages will remain uncollectible in almost every case unless the employee sues within the time allotted for his suit against the employer.
Further, while application of a short arbitration period as against employers would endanger employees’ ability to recover most of what is due them, application of a longer malpractice statute as against unions would preclude the relatively rapid final resolution of labor disputes favored by federal law — a problem not present when a party to a commercial arbitration sues his lawyer. In No. 81-2408, for example, the holding of the Court of Appeals would permit a suit as long as three years after termination of the grievance proceeding; many States provide for periods even longer. What we said in Mitchell about the 6-year contracts statute urged there can as easily be said here:
“It is important to bear in mind the observations made in the Steelworkers Trilogy that ‘the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government.... The processing... machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.’ Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 581 (1960). Although the present case involves a fairly mundane and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union.... This system, with its heavy emphasis on grievance, arbitration, and the ‘law of the shop,’ could easily become unworkable if a decision which has given ‘meaning and content’ to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as [three] years later.” 451 U. S., at 63-64.
See also Hoosier, 383 U. S., at 706-707; Machinists v. NLRB, 362 U. S. 411, 425 (1960).
These objections to the resort to state law might have to be tolerated if state law were the only source reasonably available for borrowing, as it often is. In this case, however, we have available a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here — a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state-law parallels. We refer to § 10(b) of the National Labor Relations Act, which establishes a 6-month period for making charges of unfair labor practices to the NLRB.
The NLRB has consistently held that all breaches of a union’s duty of fair representation are in fact unfair labor practices. E. g., Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enf. denied, 326 F. 2d 172 (CA2 1963). We have twice declined to decide the correctness of the Board’s position, and we need not address that question today. Even if not all breaches of the duty are unfair labor practices, however, the family resemblance is undeniable, and indeed there is a substantial overlap. Many fair representation claims (the one in No. 81-2386, for example) include allegations of discrimination based on membership status or dissident views, which would be unfair labor practices under § 8(b)(1) or (2). Aside from these clear cases, duty of fair representation claims are allegations of unfair, arbitrary, or discriminatory treatment of workers by unions — as are virtually all unfair labor practice charges made by workers against unions. See generally R. Gorman, Labor Law 698-701 (1976). Similarly
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
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063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
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070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
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078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
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098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
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110. Texas Eastern U.S. District Court
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114. Utah U.S. District Court
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130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
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138. Michigan U.S. District Court
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140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
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148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer: |
songer_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.
Marion BELL, as Administratrix of the Estate of Thomas L. Bell, and Marion Bell, Plaintiff-Appellee, Cross-Appellant, v. A-LEET LEASING CORPORATION, Citibank, N.A., Mercedes-Benz Manhattan, Inc., and Avery Agency, Inc., Defendants, A-Leet Leasing Corporation and Citibank, N.A., Defendants-Appellants, A-Leet Leasing Corporation, Defendant-Appellant, Cross-Appellee, Mercedes-Benz Manhattan, Inc., Defendant-Appellee.
Nos. 33, 265, Dockets 88-7284, 88-7296.
United States Court of Appeals, Second Circuit.
Argued Sept. 16, 1988.
Decided Dec. 15, 1988.
Bradley B. Davis, New York City, for plaintiff-appellee, cross-appellant.
Wendy E. Wells, New York City, for defendants-appellants.
Cushing 0. Condon, New York City (William P. Ford, John F. Boland, Ford Marrin Esposito Witmeyer, New York City, of counsel), for defendant-appellee.
Before KAUFMAN and MAHONEY, Circuit Judges, and McAYOY, District Judge.
The Honorable Thomas J. McAvoy of the United States District Court for the Northern District of New York, sitting by designation.
PER CURIAM:
Defendant-appellant and cross-appellee A-Leet Leasing Corporation (“A-Leet”), defendant-appellant Citibank, N.A. (“Citibank”), and plaintiff-appellee, cross-appellant Marion Bell (“Bell”) appeal from a judgment entered upon a jury verdict in the United States District Court for the Southern District of New York, Gerard L. Goet-tel, Judge, for Bell against A-Leet and Citibank in the amount of $17,229, as remitted, plus interest and costs. On appeal, A-Leet and Citibank seek reversal of the judgment, or in the alternative a new trial. Bell seeks additer to the judgment and remand for trial on additional liability against A-Leet and Mercedes-Benz Manhattan, Inc. (“Mercedes-Benz”). We affirm the judgment of the district court.
In the spring of 1981, the late Dr. Thomas L. Bell desired to purchase a Mercedes-Benz automobile from Mercedes-Benz, a dealership in New York City. Because of a poor credit rating and a number of outstanding judgments against him, Dr. Bell could only lease the car. The financial transaction was as follows: Mercedes-Benz sold the car to A-Leet for $42,900. A-Leet paid Mercedes-Benz with a $15,000 down payment received from Dr. Bell and a $27,900 loan borrowed from Citibank. Dr. Bell’s obligation, in addition to the $15,000 down payment, was to make an initial monthly payment of $3,027.15 to A-Leet and forty-five monthly payments of $1,009.05 to Citibank until Citibank’s loan to A-Leet was retired, after which A-Leet was to receive the monthly payments.
After a number of monthly payments were received late and some were paid with checks that were later returned, A-Leet repossessed the car on January 3, 1983. Dr. Bell promptly commenced this action for damages. As finally amended, the complaint named as defendants A-Leet, Citibank, Mercedes-Benz and Avery Agency, Inc. (“Avery”) (a defendant below, the re-possessor of the vehicle). In October, 1983, Dr. Bell died and his wife Marion Bell was substituted as plaintiff (both as admin-istratrix and individually, since she was a cosigner of the lease). Bell alleged inadequate credit disclosure in violation of 15 U.S.C. § 1601 et seq. (1982), wrongful repossession in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (1982), overcharge for the car, usurious interest in violation of state law, failure to account for cash payments, and violation of N.Y.Gen.Oblig.Law § 5-702 (McKinney 1978 & Supp.1988) by failure to use plain language in the lease documents.
At the close of plaintiff’s case, the district court dismissed all claims against Mercedes-Benz except a claim that Mercedes-Benz received, but did not account for, a $2,000 cash payment from Dr. Bell. This claim was decided in favor of Mercedes-Benz by the jury. Thereafter, the district court dismissed all claims against Avery and directed judgment in favor of Mercedes-Benz on all claims. The district court refused to dismiss plaintiff’s claims against A-Leet or Citibank at the conclusion of plaintiff’s direct case, and also denied these defendants’ motion for a directed verdict at the close of trial. The jury found A-Leet and Citibank liable for breach of contract, and rendered a verdict of $25,000 in damages.
Defendants A-Leet and Citibank moved for a new trial on the breach of contract claim, or alternatively, solely on the issue of damages. The district court denied the motion for a new trial, subject to plaintiffs’ acceptance of a remittitur reducing the verdict to $17,229. The district court reasoned that measuring plaintiffs damages as the fair market value of the car at the time of repossession, as the jury was instructed to do, damages could only amount to $16,229. This figure was computed by subtracting the present value of Bell’s future obligations for payments on the car (including the purchase option price), $26,671, from its retail value, $42,900, and adding to the resulting figure, $16,229, $1,000 representing the Bells’ loss of use of the car. The jury’s verdict of $25,000 in damages was almost fifty percent greater than the proper measure of damages, and was thus deemed excessive.
The only significant issue on appeal, out of the myriad raised by the parties, is whether the jury’s finding is supported by the evidence presented at trial. Early in the litigation, the attorney for A-Leet and Citibank submitted answers to interrogatories that erroneously stated the number of monthly lease payments paid by Dr. Bell. The interrogatory answers mistakenly reflected checks sent by Dr. Bell that were dishonored by the bank on which they were drawn. Although successor counsel for A-Leet and Citibank detected the errors prior to trial, no steps were taken to correct them. The district court disagreed with the jury verdict, but concluded that the verdict was not “so contrary to the weight of the evidence as to require a new trial.”
We conclude that the district court did not err in denying A-Leet and Citibank’s motions for a new trial. It is clear that answers to interrogatories may be utilized as admissions. Gadaleta v. Nederlandsch-Amerekaansche Stoomvart, 291 F.2d 212, 213 (2d Cir.1961). “ ‘When there is conflict between answers in response to interrogatories and answers obtained through other questioning, either in deposition or trial, the finder of fact must weigh all of the answers and resolve the conflict.’ ” Freed v. Erie Lackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir.1971) (quoting Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir.1968)). This, we may infer, the jury did.
Our main purpose in publishing this opinion is to remind the counsel in this case, as well as all counsel appearing before this court, of the importance we place upon resolving appeals whenever possible through this circuit’s Civil Appeals Management Plan (“CAMP”). CAMP was instituted by this circuit, pursuant to Fed. R.App.P. 33:
(1) to encourage the resolution of appeals without participation by judges, thus preserving their scarcest and most precious asset, time; (2) to expedite the consideration of appeals that will be briefed and argued; (3) to have Staff Counsel help the parties clarify the issues on appeal; and (4) to dispose of minor procedural motions without expenditure of judicial resources.
Kaufman, Must Every Appeal Run the Gamut? — The Civil Appeals Management Plan, 95 Yale L.J. 755, 756 (1986); see also Kaufman, The Pre-Argument Conference: An Appellate Procedural Reform, 74 Colum.L.Rev. 1094, 1094 (1974).
CAMP does not deprive the parties of their right to appeal — this court fully recognizes that every party has a right to appeal a district court ruling. Moreover, the purpose of CAMP is not to pressure parties to settle or withdraw an appeal. Further, we recognize that, in the words of the hallowed jurisprudential maxim, “it takes two (in this case more) to tango,” and one obdurate party or counsel can thus frustrate an otherwise available settlement without any blame legitimately attaching to the remaining dramatis personae.
Having said all this, we question whether a more meaningful effort at settlement, or at least at limiting the issues, might not have been made in this case, and remind the bar of its obligation to participate in the CAMP process, where applicable, seriously and in good faith.
The judgment of the district court is affirmed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_initiate | A | 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.
SOCONY-VACUUM OIL CO., Inc., v. ALLIED OIL CORPORATION.
No. 9896.
United States Court of Appeals. Seventh Circuit.
Dec. 2, 1949.
W. S. Bodman, Chicago, Ill. and W. P. Gilbert, Chicago, Ill. (Wilson & Mcllvaine, Chicago, Ill., of counsel), for appellant.
Thomas J. Downs, John D. O’Connor, David F. Dockman, Chicago, Ill. (Downs, Scheib & Osborne, Chicago, Ill., of counsel), for appellee.
Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.
KERNER, Circuit Judge.
Plaintiff, a New York corporation, filed its amended complaint against defendant, an Illinois corporation, to recover actual cash damages which it claims it had to pay to the United States Government on account of defendant’s false representations. Defendant moved that the complaint be dismissed because it did not state a claim upon which relief could be granted. The court sustained the motion, dismissed the complaint and entered a judgment for costs against plaintiff. From that judgment, this appeal is prosecuted.
Four grounds of recovery — in separate counts — are asserted in the complaint: (1) fraud and deceit; (2) unjust enrichment; (3) breach of warranty; and (4) equitable restitution. The complaint alleged among other things that plaintiff and defendant were engaged in the production, refining and marketing of petroleum products; that from April, 1943 to June, 1944, plaintiff bought from defendant several separate shipments of Diesel fuel which defendant shipped by rail in tank car lots from its refinery in Illinois to plaintiff at a point on the eastern seaboard; that during this period war-time regulations were in effect, which had been adopted in order to make it possible for petroleum distributors on the eastern seaboard to sell petroleum products shipped by rail from the middle west at a price equivalent to the price at which petroleum products shipped by tanker from the Texas Gulf coast could be sold. Under this regulation, purchasers of petroleurn products from the middle western area became entitled to compensation for certain portions of the cost price of petroleum products at middle western points. The regulation, in substance, contained the further provision that the compensatory-payments would not be allowed or made to the extent that an overceiling price was involved in any particular transaction. In other words, in order to maintain ceiling prices the United States Government paid such distributor a subsidy.
The complaint also alleged that the maximum price applicable to the shipments of fuel which plaintiff purchased from defendant could not be determined by plaintiff from any source whatever except from defendant. Plaintiff, therefore, at the time of making each and every purchase, demanded and received from defendant an unequivocal representation and guarantee in writing to the effect that each and every shipment was sold and billed at a price within the OPA regulation; that on the basis of such representations plaintiff paid defendant the prices charged for the fuel, and collected from the Government the compensatory adjustments with respect to each shipment.
The complaint further alleged that in April, 1947, a final audit was made of plaintiff's accounts by certified public accountants employed by the Government, and plaintiff then for the first time learned that the statements of defendant with respect to the applicable ceiling prices for the fuel sold to plaintiff were false; that defendant, by such false representations, had caused plaintiff to pay defendant prices which were in excess of authorized ceiling prices; and that on account of defendant’s false representations plaintiff was compelled to and did pay to the Government $28,152, representing compensatory adjustment payments which plaintiff had received from the Government.
Defendant contends that the statute, Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., creating price control and the respective rights and liabilities of buyers and sellers thereunder, in the case of a purchaser who buys at an overceiling price, vests the right of recovery only in the Price Administrator. It asserts that under § 4(a) of the Act the plaintiff was in duty bound to know the lawful price of the commodity, hence, the averments that defendant falsely represented that the prices charged for the oil were not in excess of established ceiling prices cannot aid plaintiff in stating its cause of action, and declares that § 205(e) of the Act establishes an exclusive remedy for a violation of the Act in the Price Administrator. In support of its contention, defendant cites, among other cases, Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332; Armour & Co. v. Blindman, D.C., 73 F.Supp. 609; and Matheny v. Porter, 10 Cir., 158 F.2d 478.
On the other hand, one of plaintiff’s contentions is that the gist of its action is the false representation upon which it relied and as a result of which it was compelled to pay the Government $28,000. It insists that where the maximum price of the commodity cannot be determined from any source except from the seller, and the purchaser contracts to pay the ceiling price, and pays, under the circumstances here appearing, a price in excess of the ceiling price as finally determined, the purchaser can recover from the seller, and cites Edsil Trading Corp. v. John Minder & Sons, 297 N.Y. 313, 79 N.E.2d 262, and declares it has pleaded a right of action cognizable under established principles of common law and equity, which principles existed long prior to the Price Control Act and which were not affected by that statute.
It is true that in the Warner Holding case, supra, the court, 328 U.S. at page 401, 66 S.Ct. at page 1091, 90 L.Ed. 1332 said: “It [§ 205(e)] establishes the sole means whereby individuals may assert their private right to damages and whereby the Administrator on behalf of the United States may seek damages in the nature of penalties.” The case involved a question of excess rent, a right created by the statute. The plaintiff, the Price Administrator, sought an injunction and an order of restitution against a landlord, and the Court merely decided that the District Court had jurisdiction to order restitution. We do not think that what was said in that case is in any way controlling here.
Defendant places special reliance on the Blindman case, supra. In that case plaintiff sought to recover the overceiling amount of the prices paid to defendant. It is true that in that case, 73 F.Supp. at page 611, the court said: “* * * it seems clear that Congress intended to impose upon the purchasers in the course of trade or business the responsibility of policing their own industry, and therefore made it obligatory on both seller and purchaser * * * to know what the ceiling prices were in regard to the commodities with which they were dealing * * *. But whether innocent or not, the purchaser at an overceiling price in the course of trade or business was deemed a violator. And that Congress intended that such violator should not be accorded the right to bring any suit, but lodged that exclusive right in the Administrator seems free from doubt.” In our view the facts are not comparable and the case is clearly distinguishable. There was no claim that plaintiff had suffered any out-of-pocket damages. All that was claimed was that overceiling prices had been charged in spite of defendant’s representation that the prices charged were within the ceiling. Moreover, as appears at page 612 of the opinion in 73 F.Supp., the Administrator had already been awarded a judgment against the defendant in an action brought under the statute on account of the over-ceiling sales.
The Matheny case, supra, is cited because the court in that case, 158 F.2d at page 479, said: “But here, section 205(e) creates a new liability, one unknown to the common law and not finding its source elsewhere. It creates the right of action and fixes the time within which a suit for the enforcement of the right must be commenced. It is a statute of creation * * In considering the language just quoted, it must be remembered that the statement was made in connection with an action, instituted by the Administrator under the statute, to recover damages for the sale of used automobiles at prices in excess of the ceiling price. It was not a suit by an injured party for fraud and deceit for which a right of action existed under established principles of law prior to the passage of the Price Control Act. We do not discuss the other ’Cases cited by defendant for the reason that they hold no more than that where a purchaser sues the seller to recover an overceiling price, under circumstances requiring plaintiff to rely upon the statute, such plaintiff cannot escape the limitation of the statute by attempting to plead what is in fact a statutory cause of action.
In passing on a motion to dismiss because the complaint fails to state a cause of action, the facts set forth in the complaint are assumed to be true. That being so, in our case certain facts stand out so prominently they cannot escape observation. Those facts are that the maximum price applicable to the shipments of fuel which plaintiff purchased from defendant could not be determined by plaintiff from any source whatever except from defendant, hence, before plaintiff would buy and at the time of making each purchase, plaintiff demanded and received from defendant a guarantee in writing that the selling price of the oil was the ceiling price or less. This representation was false, and defendant knew it. Plaintiff relied upon this representation, bought the oil at the price stated, and upon application to the Government received the compensatory adjustment, the amount of which adjustment had to be returned after an audit by the Government when plaintiff learned for the first time that the statements of defendant with respect to the applicable ceiling price for the fuel sold to plaintiff were false.
Plaintiff’s suit was a common law action for fraud and deceit. It did not assert or rely upon the Price Control Act. It is admitted it was impossible for plaintiff to determine the ceiling price at the time of the purchase and delivery of the oil, and that therefore plaintiff, in good faith, demanded and received the guarantee in question. In such a situation, the contract is valid. It was designed to comply with, rather than to violate the Price Control Act. Cf. Edsil Trading Corp. v. John Minder & Sons, supra.
In an action for fraud and deceit for false representations, the complaint must show: (1) that the defendant made a representation in regard to a material fact; (2) that such representation was false; (3) that such representation was not actually believed by defendant, on reasonable grounds, to be true; (4) that it was made with intent that it should be acted upon; (5) that it was acted on by plaintiff to its damage; and (6) that in so acting on it the plaintiff was ignorant of its falsity and reasonably believed it to be true. Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500, 501, 127 N.E. 133.
We conclude that the complaint should not have been dismissed for the reason that every element of a cause of action for fraud and deceit is alleged, and if proven upon a trial on the merits, will show an injury for which plaintiff should be made whole. In reaching this conclusion we have not overlooked defendant’s contention that the action cannot be maintained because plaintiff is in pari delicto, There is no merit to this contention.
The judgment of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. “It shall be unlawful regardless of any contract, * * * or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order * * * or of any price schedule * * * or to * * * agree to do any of the foregoing.”
. “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price * * * the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation * * * bring an action against the seller on account of the overcharge. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price * * * and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period. * * *”
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 | B | 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.
MISSISSIPPI INDUSTRIES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Missouri Public Service Commission, Mississippi Power & Light Company, Louisiana Power & Light Company, et al., City of New Orleans, Louisiana, Mississippi Public Service Commission, State of Arkansas, Union Carbide Corporation, Occidental Chemical Corporation, Arkansas & Missouri Congressional Delegations, Louisiana Public Service Commission, Arkansas Public Service Commission, Jefferson Parish, Louisiana, Arkansas Power & Light Company, Middle South Energy, Inc., Middle South Services, Inc., and Cities of Conway and West Memphis, Arkansas, Intervenors. MISSISSIPPI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI POWER & LIGHT COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. LOUISIANA PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. OCCIDENTAL CHEMICAL CORPORATION, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. REYNOLDS METALS COMPANY, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Edwin Lloyd PITTMAN, Attorney General of the State of Mississippi, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS AND MISSOURI CONGRESSIONAL DELEGATIONS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. STATE OF ARKANSAS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI LEGAL SERVICES COALITION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. CITY OF NEW ORLEANS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSOURI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Representative Webb FRANKLIN, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. JEFFERSON PARISH, LOUISIANA, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
Nos. 85-1611, 85-1613, 85-1620, 85-1621, 85-1615 to 85-1619, 85-1623, 85-1624, 85-1626, 85-1637, 85-1640, 85-1647, 85-1712, 85-1719 and 85-1772.
United States Court of Appeals, District of Columbia Circuit.
Argued March 24, 1986.
Decided Jan. 6, 1987.
Rehearing Granted in Part April 3, 1987.
James P. Murphy, with whom Michael T. Mishkin, Washington, D.C., James V. Selna, Newport Beach, Fla., Donald T. Bliss, and David T. Beddow, Washington, D.C., were on the brief, for petitioner Arkansas Industries.
Carl D. Hobelman, Washington, D.C., with whom Jerry D. Jackson, Little Rock, Ark., M. Remy Ancarrow, Washington, D.C., and Robert J. Glasser, New York City, were on the brief, for petitioner Arkansas Power & Light Co.
J. Cathy Lichtenberg, with whom Wallace L. Duncan, James D. Pembroke, Janice L. Lower, Washington, D.C., Martin C. Rothfelder, Jefferson City, Mo., William Massey, Steve Clark, and Mary B. Stallcup, Little Rock, Ark., were on the brief, for petitioners Arkansas Public Service Com’n, et al.
Hiram C. Eastland, Jr., with whom Edwin L. Pittman, Frank Spencer, John L. Maxey, II, Jackson, Miss., and Alfred Chaplin were on the brief, for petitioners Mississippi Public Service Com’n, et al.
James K. Child, Jr., Jackson, Miss., with whom Paul H. Keck, Michael F. Healy, Douglas L. Beresford, Robert R. Nordhaus, Adam Wenner, Howard Eliot Shapiro, and Margaret A. Moore, Washington, D.C., were on the brief, for petitioners Mississippi Industries, et al.
Glen L. Ortman, with whom Clinton A. Vince and Paul E. Nordstrom, Washington, D.C., were on the brief, for petitioner City of New Orleans.
Michael R. Fontham, New Orleans, La., with whom David B. Robinson, Washington, D.C., and Paul L. Zimmering, New Orleans, La., were on the brief, for petitioner Louisiana Public Service Com’n.
Peter C. Kissel, Richard G. Morgan, Earle H. O’Donnell, and Robert R. Morrow, Washington, D.C., were on the brief for petitioners Occidential Chemical Corp., et al.
A. Karen Hill, Atty., F.E.R.C., with whom William H. Satterfield, Gen. Counsel, Jerome M. Feit, Sol., and John N. Estes, III, Atty., F.E.R.C., Washington, D.C., were on the brief, for respondent.
Richard M. Merriman, Robert S. Waters, and James K. Mitchell, Washington, D.C., were on the brief for intervenors Middle South Services, Inc., et al.
William A. Chesnutt, Harrisburg, Pa., entered an appearance for intervenor Union Carbide Corp.
Before EDWARDS and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion PER CURIAM.
Separate opinion by Circuit Judge BORK, concurring in part and dissenting in part.
Part of section 111(C)(2), pp. 1560-62, and the judgment insofar as it concerns those issues are vacated.
PER CURIAM:
We consider eighteen consolidated petitions for review of two orders of the Federal Energy Regulatory Commission (FERC or the Commission). In the orders under review the Commission held that the four operating companies of the Middle South Utilities (MSU) system must share the costs of MSU’s investment in nuclear energy in proportion to their relative demand for energy generated by the system as a whole. The Commission implemented this scheme by reallocating responsibility for investment costs associated with the catastrophically uneconomical Grand Gulf I nuclear plant. The parties attack both the Commission’s jurisdiction and the rationality of its decision. Although the Commission’s allocation of nuclear investment costs is subject to reasonable dispute, we do not think such criticisms warrant reversal of FERC’s orders. We therefore affirm.
I. Background
The controversy facing the court today stems from the pattern of power generation investment cost sharing practiced by Middle South Utilities and its operating companies. In order to address fully the proper allocation of the costs of nuclear power generation among those companies, we review MSU’s structure, the history of its involvement in nuclear power generation, and the record of the proceedings below.
A. The Middle South System,
1. Corporate structure. Middle South Utilities, Inc. is a registered holding company under the Public Utility Holding Company Act of 1935 (PUHCA). 15 U.S.C. § 79 et seq. (1982). It owns outright four utility operating companies: Louisiana Power & Light Co. (LP & L), New Orleans Public Service, Inc. (NOPSI), Arkansas Power & Light Co. (AP & L), and Mississippi Power & Light Co. (MP & L). See Middle South Energy, Inc., 26 FERC ¶ 63,044, 65,098 (1984). The operating companies sell electricity, both wholesale and retail, in the states of Louisiana, Arkansas, Missouri, and Mississippi.
Although each operating company has a separate board of directors, the sole stockholder, MSU, selects each director. In addition, the various companies do have common or overlapping officers and directors. The Chairman and Chief Executive Officer (CEO) of MSU is a member of the board of each operating company and the CEOs of the operating companies are members of the board of MSU. Other MSU board members are also board members of individual operating companies. Middle South Services, Inc., 30 FERC ¶ 63,030, 65,142 (Docket No. ER82-463-000) (ALJ Head).
Transactions among the various operating companies are governed by a System Agreement. Over its history, MSU has filed three successive System Agreements — in 1951, 1973, and 1982. The Commission scrutinizes the System Agreement and modifies it when necessary. See, e.g., Middle South Services, Inc., 16 FERC ¶ 61,101 (1981) (modifying the 1973 System Agreement), aff'd, Louisiana Public Service Commission v. FERC, 688 F.2d 357 (5th Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 343 (1983). Section 3.01 of the Agreement states the system’s general goal of operating as a coherent unit:
The purpose of this Agreement is to provide the contractual basis for the continued planning, construction, and operation of the electric generation * * * facilities of the Companies in such a manner as to achieve economies consistent with the highest practicable reliability of service * * *. This agreement also provides a basis for equalizing among the Companies any imbalance of cost associated with the construction, ownership and operation of such facilities as are used for the mutual benefit of all the Companies.
483-R. 7117, VII Joint Appendix (JA) 1569. In light of this language, Administrative Law Judge (ALJ) Head found that the MSU system has sought to coordinate the addition of operating capacity by each individual operating company while achieving the greatest economies of scale. As he observed:
The System Agreements * * * clearly permit and encourage, for efficiency, reliability, and other economies of scale, that the individual companies from time to time build larger facilities than are necessary to meet their own native load, to benefit all the generating companies by having lower costs and greater reliabili- ^ ^ ^
30 FERC at 65,142.
All three System Agreements have assigned the task of coordinating the planning of new generating capacity to a systemwide Operating Committee. The CEO of each operating company designates one member of the committee, as does MSU. The members representing the operating companies control 80% of the votes on the committee, apportioned according to each individual company’s share of the system’s investment in generating capacity. The representative of MSU votes the remaining 20%. Under Section 5.04 of the System Agreement, the Operating Committee can now take action on the basis of a bare majority. 483-R. 7129, VII JA 1581.
2. Investment cost sharing. As ALJ Liebman noted, the MSU system planning approach to new generating capacity inevitably results in certain operating companies having less generating capacity than do others for varying periods of time. See 26 FERC at 65,098 (Docket No. ER82-616000. If a company does not have enough capacity to meet the needs of its consumers, the deficient operating company can always draw on the excess capacity of the other companies on the system. This system also benefits those companies that have built more capacity than necessary to meet current demand. Such companies generally find willing buyers of their surplus among the other companies on the system.
Under the system planning approach, it is inevitable that an operating company will, from time to time, provide a proportionate share of the system’s investment in generating capacity that is more or less than its proportionate demand for the system’s energy. If a company’s share of the system’s generating capacity is greater than its share of the energy actually generated and distributed by the system as a whole, the company is deemed to be “long.” If the company’s share of the system’s generating capacity is less than its percentage of the system’s energy, the company is deemed “short.” 26 FERC at 65,099.
Since 1951 the MSU system has sought to iron out the inequities that would otherwise result where some companies were long while other companies were short through a system of “equalization payments.” Prior to 1973 each “short” company made a payment to the “long” companies based on a fixed dollar amount per kilowatt of capacity that the company was short. In 1973 the System Agreement was amended to provide for capacity equalization payments calculated under the “participation unit” formula, a formula that based payments on the ownership costs of the latest unit constructed by the “long” company. See id.; see also 30 FERC at 65,122-23.
Importantly, this new system did not call for equalization payments based on the relative number of dollars each company had invested in generating capacity. Instead, the relative number of kilowatts of generating capacity owned by each company formed the basis for the payments. Because kilowatts can vary in cost, the system potentially perpetuated the operating companies’ relatively unequal investment in generating capacity.
For over twenty-five years, however, the system largely avoided this potential inequity. Notwithstanding its limitations, the equalization payment approach managed to produce the effect of roughly equalizing the cost of investing in new capacity from the 1950’s through the 1970’s. During the years in which the 1951 System Agreement was in force the cost of creating such capacity was relatively uniform and relatively constant. See 616-R. 1332-33, I JA 140-41; 30 FERC at 65,168. As a consequence, the System Agreement’s allocation of equalization payments based on a constant dollar per kilowatt of short capacity served to equalize investment costs. Although in the 1970’s the cost of new units began to exceed that of older facilities by a substantial margin, the 1973 System Agreement balanced this development by basing equalization payments on the costs of the newest (and more expensive) units of the “long” companies. 26 FERC at 65,-100.
3. The shift to nuclear energy and its consequences. In the 1950’s and 1960’s the MSU system tended to add new generating units in the southern part of the system to take advantage of cheap oil and gas reserves in Louisiana. See 26 FERC at 65,100; 30 FERC at 65,143. In the late 1960’s, however, the system began a program of adding coal and nuclear generating capacity, 30 FERC at 65,144, that eventually resulted in the collapse of the investment equalization program.
AP & L was the first operating company to make such an investment in nuclear power. AP & L had historically been both a short company and one with insufficient capacity to meet the requirements of its customers. 30 FERC at 65,143. Moreover, AP & L had been losing its long-term gas contracts while Louisiana and Mississippi continued to have an adequate supply of gas and oil. 26 FERC at 65,101. In December 1974 AP & L brought on line MSU’s first nuclear plant, Arkansas Nuclear One (ANO) Unit 1.
Although ANO l’s capacity was substantially more expensive than that of non-nuclear generating units built at the time, 26 FERC at 65,100-01, the lower fuel costs of a nuclear unit made the total generation costs of ANO 1 comparable to those of other plants brought on line in the 1970’s. Thus it is fair to say that the basic system of roughly equalizing the costs and benefits derived from the system’s investment in new capacity remained intact.
The picture changed radically with the development of two new nuclear units — the Waterford 3 unit (assigned to LP & L) and Grand Gulf 1 (initially assigned to MP & L). Grand Gulf was initially projected to cost $1.2 billion for two generating units. Regulatory delays, additional construction requirements, and severe inflation ran up Grand Gulf costs to in excess of $3 billion for one unit. Similar cost over-runs marred the construction of Waterford 3. See Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305, 61,654 (1985). These units produce the most expensive energy on the MSU system. Measured in dollars per kilowatt of generating capacity, the new units were five times costlier than the ANO units installed by AP & L. Most important, although these two plants have been estimated to represent over 70% of the production costs of the MSU system, they apparently will produce only 13% of the electricity used on the system. 30 FERC at 65,121.
Under these conditions, continued application of a capacity equalization scheme that only sought to equalize kilowatts could no longer come close to equalizing investment dollars. Any operating company saddled with responsibility for Waterford 3 and/or Grand Gulf would likely find itself paying far more per kilowatt of capacity than would an operating company that was free of such a burden. 26 FERC at 65,100.
It is true that MSU filed a new System Agreement in 1982 altering its previous equalization scheme. Unlike the 1973 Agreement, which had pegged equalization payments to the cost of the long company’s most recent generating addition, the 1982 Agreement provided for equalization payments based on the long company’s “intermediate” (ie., oil and gas) units. 483-R. 7137-50, VII JA 1589-96. This change reduced the burden on any company that might be both short and have substantial responsibility for the new nuclear plants. But, as discussed below, this change did not eliminate the major inequities that nuclear power introduced to the MSU system.
4. The Grand Gulf plant. The Grand Gulf project was initiated by MSU to meet the then projected demand for electricity by the system as a whole. 26 FERC at 65,101-02. By the late 1970’s, however, it became clear that projected demand would fall well short of previous expectations. Nonetheless, MSU continued to build Grand Gulf 1 on the assumption that the overall cost per kilowatt hour would be less than that of alternative energy sources. 26 FERC at 65,102.
Initially the plant had been assigned to MP & L. It soon became apparent, however, that MP & L did not have the resources to finance the construction of the plant. As a consequence, MSU made a system decision to form Middle South Energy (MSE) in 1974 as a vehicle for financing Grand Gulf. MSE acquired full title to Grand Gulf. In June of 1974 all four Middle South operating companies entered into an “Availability Agreement” under which each operating company put its credit behind Grand Gulf.
Notwithstanding this initial agreement, at the time MSE was first formed no clear plan existed to allocate responsibility for Grand Gulf’s capacity to each of the companies. Over the years various allocation plans were put forward, ultimately resulting in the Unit Power Sales Agreement (UPSA) at issue in this case.
At first it was contemplated that MSE would become a party to the System Agreement. Under this plan all of Grand Gulf would be a “participation unit” and responsibility for the plant’s capacity would shift among the operating companies to the degree they were short. 616-R. 4122-23, II JA 505.
In 1979 MSU officials, having come to the conclusion that a fixed allocation of capacity was preferable to a scheme of shifting responsibilities, recommended a plan that would have allocated a share of Grand Gulf capacity to all of the operating companies. But by early 1980 the MSU officers were moving toward a scheme absolving AP & L of all responsibility for Grand Gulf. In July of 1980 the CEOs of the MSU operating companies signed a Memorandum of Understanding, freeing AP & 1/ of all responsibility for Grand Gulf. Although this Memorandum was never submitted to the Coordinating Committee, and therefore never became final, its basic terms were set forth in a “Reallocation Agreement” executed in July 1981. 616-R. 3275,1 JA 268. Under the Reallocation Agreement AP & L assigned its entitlement to purchase Grand Gulf power to the other companies. In addition, NOPSI, LP & L, and MP & L agreed to indemnify AP & L for any obligation it might incur to MSE’s creditors. The Reallocation Agreement thus relieved AP & L of any responsibility for Grand Gulf capacity costs and provided the basis for the Unit Power Sales Agreement. 26 FERC at 65,103.
The Unit Power Sales Agreement was executed on June 10,1982. Although all of the operating companies are signatories to the UPSA, it only provides for sale of Grand Gulf capacity and energy by MSE to three of the operating companies: LP & L, MP & L, and NOPSI, but not to AP & L. 26 FERC at 65,095.
B. The Proceedings Below
In April 1982 MSU filed with the Commission the 1982 System Agreement, which set the general rules governing transactions between the operating companies, including capacity equalization payments and the rates governing the exchange of energy between the operating companies. FERC set the proceeding for hearing before AU Head. In June 1982 MSU filed the Unit Power Sales Agreement with the Commission, governing the sales of Grand Gulf capacity and energy by MSE to the four operating companies. This proceeding was set for hearing before AU Liebman. AU Liebman issued his opinion on February 3, 1984, Middle South Energy, Inc., 26 FERC 1163,044 (1984), and AU Head issued his opinion a year later, on February 4, 1985. Middle South Services, Inc., 30 FERC ¶ 63,030 (1985). Both decisions touched on the allocation of Grand Gulf Power, and FERC reviewed both decisions in an opinion issued June 13,1985. Middle South Energy, Inc. and Middle South Services, Inc., 31 FERC ¶ 61,305 (1985). It revisited the issue following petitions for rehearing in an opinion issued September 28, 1985. Middle South Energy, Inc. and Middle South Services, Inc., 32 FERC ¶ 61,425 (1985).
1. ALJ Liebman’s decision in the UPSA case (ER82-616). The principal issue in ER82-616 was whether the UPSA’s proposed allocation of Grand Gulf investment costs was reasonable and, if not, how such costs should be allocated. As a threshold matter, however, AU Liebman rejected a series of arguments suggesting that FERC did not have jurisdiction or statutory authority to amend this aspect of the UPSA.
Having found jurisdiction, AU Liebman found that the UPSA was “unduly discriminatory” under Section 206(a) of the Federal Power Act, 16 U.S.C. § 824e(a) (1982), because it failed to allocate any portion of Grand Gulf’s capacity costs to AP & L. He based this decision on his view of the MSU system as a highly integrated operation that made critical decisions — such as the decision to move into nuclear power — as a unit. Under that view AU Liebman thought it only fair that AP & L pay its share of the company’s decision to build nuclear capacity. Having rejected the UPSA’s allocation of Grand Gulf costs, AU Liebman was faced with three alternatives:
(1) Making Grand Gulf a participation unit, with floating responsibility among the short(er) companies.
(2) Allocating responsibility for Grand Gulf capacity proportionate to each operating company’s relative share of system demand, as fixed in 1982.
(3) Allocating responsibility for Grand Gulf such that each operating company bore a share of the cost of all the nuclear units on the MSU system proportionate to that company’s relative share of system demand, as fixed in 1982.
26 FERC at 65,109.
AU Liebman chose the last proposal. As the Commission noted, this approach did not merely allocate the cost of Grand Gulf. By including the total system investment in nuclear power in his formula, AU Liebman effectively reallocated the costs of all nuclear capacity on the MSU system. 31 FERC at 61,633.
AU Liebman justified his exclusive focus on nuclear capacity costs — rather than on equalizing the costs of all capacity investment or, even more sweeping, equalizing all generating costs — by claiming that the differences among non-nuclear base load generation costs were minor eompared to the cost differences among the nuclear generating facilities. 26 FERC at 65,110. He suggested that even under his proposal AP & L would still have the low- total generation costs on the system, at 65,119. He justified his decision to reallocate costs of Grand Gulf primarily by reference to the fact that the UPSA perpetuated discrimination caused by the timing of nuclear units by forcing the Louisiana and Mississippi ratepayers to pay about four times more for nuclear capacity than the Arkansas ratepayers would pay for their nuclear kilowatts. Id. at 65,107.
2. ALJ Head’s decision in the System Agreement case (ER82-483). The principal issue in the System Agreement proceeding was whether FERC should approve that Agreement as filed or whether it should equalize all or part of the production costs on the system. 30 FERC at 65,120. AU Head also considered a series of arguments militating against FERC jurisdiction over the reallocation of Grand Gulf costs and rejected them.
Having found that FERC had the authority to reallocate production costs, AU Head faced the following alternatives:
(1) Adoption of the System Agreement as filed. This would entail allocating none of the Grand Gulf costs to AP & L and only equalizing the costs of capacity between “long” and “short” companies, with equalization payments pegged to the cost of the long companies’ oil and gas investment costs.
(2) Equalization of production costs. The basic concept, presented by the Louisiana Public Service Commission, was to allocate responsibility for a share of all production costs on the MSU system proportionate to each company’s share of the system’s total load.
(3) Making Grand Gulf a participation unit. This proposal would allocate responsibility for Grand Gulf capacity to each operating company to the degree that the company in question was “short.” Under this scheme responsibility for Grand Gulf capacity would shift over time.
AU Head rejected all of these proposals. He rejected the concept of making Grand Gulf 1 a participation unit primarily because it would allow long companies (e.g., MP & L) to avoid completely the high front-end costs associated with that plant. 30 FERC at 65,166-67. He rejected the equalization proposals on the ground that overall cost equalization would be inconsistent with the general “pattern of autonomy * * * particularly as to * * * specific plant site locations, fuel and financing” that he found characterized the operating companies in the MSU system. Id. at 65,168.
AU Head found support for his finding of a “pattern of autonomy” in two circumstances. First, he stressed that the historic practice in the MSU system was to equalize only excess capacity. Id. at 65,167. Second, he insisted that “generation additions in almost every instance (except for Grand Gulf) were made primarily to satisfy individual company needs.” Id. at 65,168.
AU Head, however, found that Grand Gulf constituted an “anomaly” in the MSU system:
Grand Gulf from its inception was planned, presented to the licensing authorities and constructed as a system plant not only to serve the needs of MP & L but to serve the needs of all the operating companies on the system.
30 FERC at 65,170.
He therefore deemed it appropriate to reject the System Agreement as filed and to allocate the costs of the Grand Gulf investment among all of the operating companies. Unlike AU Liebman, however, he held that this allocation should fluctuate from year to year to track each company’s relative demand for the system’s energy. 30 FERC at 65,172.
3. FERC’s initial decision. In Order No. 234 the Commission summarily affirmed both AUs on the threshold issue of its own jurisdiction to amend the Sales Agreement and the System Agreement. 31 FERC at 61,643-46. On the merits, the Commission affirmed both AUs’ findings that MSU constituted an “integrated electric system.” 31 FERC at 61,645. The Commission, however, specifically rejected AU Head’s finding that the MSU system displayed a “pattern of autonomy” with regard to the planning and construction of generating units. Id.
The Commission conceded that MSU’s system of overlapping officers and directors and the representation of the operating companies on the System Operating Committee gave the operating companies substantial influence in the development of the system’s plans. Id. at 61,646. FERC further observed that the individual companies used their influence to seek the addition of generating units that met their particular needs, and that Section 4.01 of the System Agreement made each operating company responsible for financing the ownership or purchase of the generating capacity necessary to service its customers. Id. at 61,649. The Commission nonetheless concluded that “major critical decisions, including decisions to build new generating units, are made by the Operating Committee for the benefit of the system as a whole.” Id. at 61,646. See also id. at 61,650.
The Commission buttressed its conclusion with the following evidentiary support: (1) Section 4.01 of the 1982 System Agreement provides that the Operating Committee shall “determine” the system generation addition plans; (2) at least five witnesses testified that new units were added to address the needs of the system as a whole, id. at 61,646-48; and (3) the Operating Committee minutes over a twenty-year period revealed that the Committee had the responsibility and the authority to make the “critical decisions” concerning the addition of generating capacity. Id. at 61,648-49.
The Commission’s review of the Operating Committee minutes revealed that the Operating Committee did not merely rubber-stamp the requests of the individual operating companies concerning the addition of generating capacity. Id. at 61,649. The Commission found that the Operating Committee consistently based its generation plans on the needs of the system as a whole. Id. at 61,649-50. It found that the Operating Committee had authority over the general timing, location, and size of plant additions, while the individual operating companies retained authority to fill in the details of such fundamental decisions. Id. Thus FERC stated that there was no evidence in the record that an operating company had ever built a new plant without a recommendation from the Operating Committee or that one had ever refused to carry out such a recommendation. Id. at 61,651.
In light of this finding, FERC rejected AU Head’s contention that Grand Gulf was an “anomaly.” Instead it agreed with AU Liebman that Grand Gulf, like every other generating station, was built to serve the needs of the system as a whole and to attain the system-wide goal of diversifying MSU’s fuel mix. Id. at 61,653. MSE was deemed a mere financing shell that the Commission hypothesized would have been made available to any other operating company that suffered the financial difficulties encountered by MP & L. Id. at 61,654.
The Commission viewed the decision to move into nuclear power as a system-wide decision calculated to meet system-wide needs. It found that MSU’s nuclear project had run afoul of unforeseen economic difficulties that had disrupted the system’s historic rough equalization of generation costs. FERC therefore adopted AU Liebman’s scheme of allocating Grand Gulf costs so that each operating company would contribute proportionately to the system’s investment in nuclear capacity. Id. at 61,655.
4. FERC’s opinion on rehearing. In Opinion No. 234-A FERC clarified its position on the various jurisdictional arguments it had addressed in its initial decision. 32 FERC at 61,943-52. The Commission also addressed — and rejected — the argument raised by various Arkansas parties that FERC lacked jurisdiction as there was no interstate sale of power. The Commission suggested that, whatever the merits of such an argument where a “monolithic” system is concerned, there was no question but that the transfer of power among the MSU operating companies constitutes a “sale for resale.” Id. at 61,957.
Indeed, a major portion of the Commission’s opinion on rehearing was dedicated to clarifying the Commission’s essential finding concerning the “integrated” character of the MSU system. The Commission rejected any attempt to mischaracterize its decision as based on a view that MSU is a “monolith.” Id. at 61,952. FERC simply insisted that, whatever the powers of the individual operating companies, the MSU Operating Committee makes the “major critical decisions on the System, primarily for the System as a whole.” Id. at 61,953 (emphasis in original). The Commission emphasized that its opinion hinged on “a variety of factors including the manner in which decisions are made by the commonly owned affiliates, and for whose primary benefit those decisions are made.” Id. at 61,956.
Turning to the merits, the Commission addressed three challenges to the rationality of its allocation of Grand Gulf costs. It disputed the contention of the Arkansas parties that the allocation violated the spirit and practice of the MSU system, the System Agreement, and the intent of the parties to that Agreement. FERC responded that the clear intent of the System Agreement was to correct major cost imbalances while moving toward a mixed fuel base including nuclear and coal-fired facilities. The Commission insisted that it need not measure the rationality of its allocation from the vantage point of the parties at the time the UPSA was first negotiated. Id. at 61,957-59.
The Commission also addressed the argument of MP & L that the Commission’s order had only exacerbated the discrimination it would have suffered under the original UPSA scheme. MP & L noted that under the UPSA it would have been responsible for 31.63% of Grand Gulf, but under the Commission’s scheme it would be responsible for a full 33%. 31 FERC at 61,-959. Under the new scheme Mississippi would receive only 9.5% of the system’s nuclear capacity while paying for 15% of the system’s nuclear investment. 32 FERC at 61,964 n. 26.
The Commission responded by asserting that the mere fact that FERC’s order increased MP & L’s burden did not make it more discriminatory., It is completely rational, argued the Commission, that a smaller burden can be discriminatory and, with a change in the relative standing of the parties, a larger burden can be fair. The original allocation was discriminatory, in the Commission’s view, because AP & L had failed to share the burden of Grand Gulf. Although the Commission’s order would increase MP & L’s allocation somewhat, it would spread the overall burden of Grand Gulf more equitably by making AP & L carry a portion of the burden.
The Commission suggested that its refusal to reallocate the capacity of all nuclear units (as well as their costs) was justified by the MSU system’s historic aversion to equalizing all costs per kilowatt. Id. at 61,959. It stressed the same point in responding to the arguments of various Louisiana parties that it should have adopted full cost equalization. Id. at 61,961. Thus the Commission depicted its opinion as an attempt to balance
the need to provide an equitable sharing of the investment costs of units that have (or could have) become unforeseeably high due to the unique problems associated with nuclear construction, and the need to recognize the efforts of individual companies on the System and allow them to retain the benefits of units they own to the fullest extent possible.
Id.
Dissatisfied with this rationale, petitioners sought review in this court.
II. Jurisdiction
The petitioners from Arkansas, Missouri and Mississippi raise certain threshold challenges to the Commission’s decision. They contend that FERC lacks jurisdiction to modify the allocation of the capacity costs of Grand Gulf embodied in the Unit Power Sales Agreement (“UPSA”). We disagree, and hold that the Federal Power Act (“FPA” or “the Act”) provides FERC with authority to issue the orders in question. Initially, we will set forth the affirmative basis of FERC’s jurisdiction; thereafter, we will address (and reject) each individual counterargument raised by petitioners.
A. The Jurisdiction of the Commission
Section 201 of the Act contains the Commission’s basic jurisdictional grant. It provides that “[t]he provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce” and that “[t]he Commission shall have jurisdiction over all facilities for such transmission or sale____” This section also defines “public utility” as “any person who owns or operates facilities subject to the jurisdiction of the Commission under this subchapter.” The facts here reveal that MSE sells Grand Gulfs energy to the affiliated operating companies of the MSU system at wholesale in interstate commerce. Thus, under section 201 of the Act, MSE is a “public utility” and FERC retains jurisdiction over its sales and facilities.
Sections 205 and 206 of the Act set forth the Commission’s remedial authority. Section 205(a) establishes a threshold requirement that all “rates and charges” made by a public utility, and “all rules and regulations affecting or pertaining to such rates and charges,” must be “just and reasonable,” or they will be deemed “unlawful.” Most significantly for our purposes, section 206 provides that when the Commission, after a hearing, determines that
any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge,
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_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.
Dalleen RUCKER, Plaintiff-Appellant, Kathy Warner, Intervenor-Appellant, v. The SECRETARY OF the TREASURY OF the UNITED STATES, and The United States of America, Defendants-Appellees, Rosa Ortega, Intervenor.
No. 83-1804.
United States Court of Appeals, Tenth Circuit.
Dec. 28, 1984.
Glenn Meyers of Colorado Rural Legal Services, Inc., Denver, Colo. (Jacquelyn Higinbotham of Colorado Rural Legal Services, Inc., Fort Morgan, Colo., with him on the brief), for plaintiff-appellant and inter-venor-appellant.
Jo-Ann Horn, Atty., Tax Div., Dept, of Justice, Washington, D.C. (Robert N. Miller, U.S. Atty., Denver, Colo., of counsel; Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Attys., Tax Div., Dept, of Justice, Washington, D.C., with her on the brief), for defendants-appellees.
Before SETH, BREITENSTEIN and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Dalleen Rucker brought this class action against the Secretary of the Treasury and the United States, challenging the application to her of section 464 of the Social Security Act, 42 U.S.C. § 664 (1982). Kathy Warner subsequently joined the action as an intervenor. Plaintiffs alleged that the Secretary exceeded his statutory authority by withholding federal income tax refunds and earned income credits due them. They sought declaratory and injunc-tive relief. The district court dismissed Rucker’s claims as moot and also dismissed Warner’s intervenor claim. We reverse.
I.
BACKGROUND
This case involves the federal-state intercept program authorized by section 2331 of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 860 (1981) (Omnibus Act). Under this program, federal income tax refunds due a taxpayer may be transferred to a state to the extent of a taxpayer’s past-due child support obligations. Two provisions of the Omnibus Act are relevant here. The first is an amendment to the Social Security Act, 42 U.S.C. § 664 (1982), which provides for reimbursing states that have supported the taxpayer’s children through the Aid to Families with Dependent Children program (AFDC). Section 664(a) authorizes the Secretary of the Treasury to withhold “refunds of Federal taxes paid” which are due to a parent of children supported by AFDC, and to transfer these funds to an appropriate state agency to satisfy the parent’s child support obligation. The second provision is an amendment to section 6402 of the Internal Revenue Code, 26 U.S.C. § 6402(c) (1982), which implements the procedure authorized by section 664(a) and provides that “[t]he amount of any overpayment to be refunded to the person making the overpayment” shall be reduced by the amount of any past-due child support.
Plaintiff Dalleen Rucker is a married woman and a Colorado resident. Her husband is indebted to the State of Colorado for his failure to make required support payments to the children of his prior marriage. In April 1982, Rucker and her husband filed a joint 1981 Federal income tax return, expecting to receive $1,124 back from the Internal Revenue Service. This sum consisted of an income tax refund and an earned income credit. In June 1982, the IRS notified the Ruckers by letter that this sum was being withheld to satisfy Mr. Rucker’s child support obligations. In August 1982, Rucker filed an amended tax return seeking a refund of that portion of the overpayment of income taxes and the earned income credit allocable to her. She subsequently received a refund of $126, which represented the entire amount of her excess wage withholdings and a portion of the earned income credit.
Immediately after filing her amended tax return, and before receiving the $126 refund, Rucker brought this action claiming that defendants exceed their statutory authority by intercepting and withholding funds owed to a taxpayer who is the nonob-ligated spouse of a child support obligor. She also claimed that defendants’ taking money due to a married taxpayer to satisfy obligations of a spouse, without affording the taxpayer notice and an opportunity to contest the liability, is a taking of property without due process in violation of the Fifth Amendment.
The district court dismissed plaintiffs’ claims on the grounds of mootness. Rucker v. Secretary of the Treasury, 555 F.Supp. 1051, 1053 (D.Colo.1983). The court held that Rucker’s Fifth Amendment and tax refund claims were moot because she had received her allocable share of the income tax refund. The court also ruled that earned income credits are subject to the intercept program and that Rucker’s earned income credit claim was also moot because she had received an allocable share of this credit. On appeal, Rucker raises only the issue whether earned income credits are subject to the intercept program and whether they lawfully can be withheld under section 664(a).
II.
MOOTNESS
Defendants assert that there is no case or controversy to support federal court jurisdiction, as required by article III, section 2 of the United States Constitution, because Rucker has received her allocable share of the earned income credit. Defendants claim that it was unnecessary and purely advisory for the trial court to consider whether the earned income credit could be withheld under section 664, and that no justicable issue is presented to this court on appeal. See Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); Norvell v. Sangre de Cristo Development Co., 519 F.2d 370, 375 (10th Cir.1975); Oklahoma City, Oklahoma v. Dulick, 318 F.2d 830, 831 (10th Cir.1963).
This argument misconceives the nature of Rucker’s claim. As we read Rucker’s complaint, she is clearly claiming that defendants have exceeded their statutory authority by withholding any of the earned income credit due to her and her husband as a family unit. The IRS refunded only what it determined to be the portion of the credit allocable to her alone. The remaining portion of the credit has not been refunded to the Ruckers and Mrs. Rucker’s claim to the remainder provides the necessary controversy needed to support federal court jurisdiction. In arguing to the contrary, defendants assume the very issue in this case: whether the earned income credit can be allocated among spouses and a portion of it withheld under section 664 to satisfy one spouse’s child support obligations. Consequently, Rucker’s claim is not moot.
III.
SOVEREIGN IMMUNITY Defendants argue that if Rucker’s claim is not moot, it is barred by her failure to comply with the jurisdictional requirements of the Internal Revenue Code, 26 U.S.C. § 7422(a) (1982), which provides that no suit may be maintained for the recovery of any tax until a claim for refund has been duly filed with the IRS. They argue that Rucker’s suit, instituted after her refund claim had been filed but prior to the expiration of the six-month period set forth in 26 U.S.C. § 6532(a)(1) (1982), is barred by the doctrine of sovereign immunity. See, e.g., Dieckmann v. United States, 550 F.2d 622, 623 (10th Cir.1977); United States v. Freedman, 444 F.2d 1387, 1388 (9th Cir. 1971), cert. denied, 404 U.S. 992, 92 S.Ct. 538, 30 L.Ed.2d 544 (1971); Oldland v. Kurtz, 528 F.Supp. 316, 322-23 (D.Colo. 1981).
A number of courts have addressed this very issue in the context of challenges to the intercept program. Almost all have concluded that claims to withheld tax refunds and earned income credits are not barred by sections 7422(a) and 6532 of the Internal Revenue Code. See Nelson v. Regan, 731 F.2d 105, 109 (2d Cir.1984); Jahn v. Regan, 584 F.Supp. 399, 408 n. 17 (E.D.Mich.1984); Sorenson v. Secretary of the Treasury, 557 F.Supp. 729, 732-33 (W.D.Wash.1982), appeal docketed, No. 83-3694 (9th Cir. Mar. 23, 1983); cf. Marcello v. Regan, 574 F.Supp. 586, 594 (D.R.I. 1983) (26 U.S.C. § 7421(a) likewise does not bar these challenges); Coughlin v. Regan, 584 F.Supp. 697, 705-06 (D.Maine 1984) (same). But see Vidra v. Egger, 575 F.Supp. 1305, 1307-08 (E.D.Pa.1982). As these decisions recognize, the statutory language of section 7422(a) and the policies prohibiting judicial intervention in tax collection and assessment are not applicable to challenges to the intercept program. The intercept program operates only after tax assessment and collection, when the federal government ceases to have an interest in the tax refunds. Judicial review at this point will not interfere with or thwart the government’s ability to collect taxes or its need for steady and predictable tax revenues. See, e.g., Marcello, 574 F.Supp. at 594. Cf. Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2045, 40 L.Ed.2d 496 (1974). Accordingly, we conclude that plaintiffs’ claims for earned income credit benefits are not barred by sections 7422(a) and 6532 of the Internal Revenue Code.
IV.
EARNED INCOME CREDIT WITHHOLDING
As noted above, 42 U.S.C. § 664(a) authorizes the Secretary of the Treasury to withhold “refunds of federal taxes paid” which are due to an obligated spouse. In addition, 26 U.S.C. § 6402(c) provides that the amount of any “overpayment to be refunded to the person making the overpayment” shall be reduced by the amount of past-due child support. Rucker asserts that the earned income credit is neither a “refund of federal taxes” nor an “overpayment” within the meaning of these two statutory provisions, and thus is not subject to withholding in the intercept program.
The earned income credit is a benefit available to certain families with dependent children and with an earned family income of less than $10,000 per year. See 26 U.S.C. § 43 (1982). The maximum credit allowed is $500. It is reduced proportionately as the adjusted gross family income increases above $6000, dropping to zero at $10,000. It was designed to provide relief to low income families who pay little or no income tax, and it was intended to provide an incentive for low income people to work rather than to receive federal assistance. See S.Rep. No. 94-36, 94th Cong., 1st Sess. 11 (1975), reprinted in 1975 U.S.Code Cong. & Ad.News 54, 63-64. While the credit benefits are distributed through the tax refund process, a recipient need not have owed or paid any taxes to be eligible. See Nelson, 731 F.2d at 109; In re Searles, 445 F.Supp. 749, 752-53 (D.Conn.1978). A refund of federal taxes is a repayment of money paid by a taxpayer in excess of that taxpayer’s liability. Although the earned income credit is given effect through the income tax return, the credit is not a tax refund because eligibility for the credit is not contingent upon payment of any federal income tax. Id.; In re Hurles, 31 B.R. 179, 180 (Bankr.S.D.Ohio 1983). Section 664(a), which authorizes interception only of “refunds of federal taxes paid,” does not itself authorize interception of the earned income credit.
Defendants argue, however, that while section 664(a) may not authorize the withholding of earned income credits, such withholding is expressly authorized by section 6402(c) of the Internal Revenue Code because the earned income credit is an “overpayment” subject to interception. They point out that section 6401 of the Internal Revenue Code, 26 U.S.C. § 6401, defines “overpayment” to include the excess of an earned income credit over tax liability, and that this excess exists even when there is no tax liability. Rucker counters that because section 6402(c) only authorizes an offset against an “overpayment to be refunded to the person making the overpayment,” the earned income credit is not an “overpayment” that can be withheld under section 6402(c).
Courts that have faced this issue have reached conflicting results. Compare Nelson, 731 F.2d at 111-12 (the earned income credit is not subject to interception under 26 U.S.C. § 6402(c)) with Coughlin, 584 F.Supp. at 706-07 (26 U.S.C. § 6402(c) authorizes interception of the earned income credit), and Sorenson, 557 F.Supp. at 733-34 (W.D.Wash.1983) (same). For the reasons set forth below, we believe the Second Circuit’s decision in Nelson is the better view.
As the Nelson court notes, the term “overpayment,” broadly defined in section 6401 but limited in section 6402 by the phrase “to be refunded to the person making the overpayment,” is ambiguous with regard to the earned income credit. Section 6401 is a general provision in the chapter on Abatements, Credits, and Refunds of the Internal Revenue Code, governing the tax refund process. See Nelson, 731 F.2d at 111. Section 6402(c) and section 664(a), on the other hand, were both enacted as part of the Omnibus Act, which established the tax intercept program. Id. Interpreting the term “overpayment” in section 6402(c) so as not to include the earned income credit results in consistency with section 664(a) which authorizes only withholding of federal tax refunds. Moreover, we believe that this interpretation furthers the congressional purpose in enacting the earned income credit. Reducing the amount of the earned income credit due to a low income working family would reduce the family members’ incentive to work, and would frustrate the congressional goals of providing relief to low income families, encouraging work, reducing dependence on federal assistance, and stimulating the economy. See id. at 111-12; cf., In re Searles, 455 F.Supp. at 752-53 (discussing the adverse effects of including the credit in a bankrupt’s property).
Defendants claim and the district court agreed, that the tax intercept program’s goal of enforcing child support obligations should take priority over the policies underlying the earned income credit. See Rucker, 555 F.Supp. at 1053. We are not persuaded. The intercepted funds are not paid to support the obligated taxpayer’s child but to reimburse a state for its support of that child in the past. The earned income credit, on the other hand, directly benefits the dependent children of the low income taxpayer. In the absence of evidence that Congress intended such a substantial cutback on the earned income credit program, we interpret the intercept legislation before us so as to avoid both conflict between the provisions of the Omnibus Act and a result clearly at odds with the goals of the earned income credit program. We hold that 26 U.S.C. § 6402 and 42 U.S.C. § 664 do not authorize the withholding of any portion of the earned income credit due an otherwise eligible recipient.
The judgment is reversed and remanded to the district court for further proceedings.
. 42 U.S.C. § 602(a)(26) (1982) requires the parent to whom child support payments are due to assign the right to such payments to a state as a precondition to AFDC eligibility in that state.
. 42 U.S.C. § 664(a) provides:
“Upon receiving notice from a State agency administering a plan approved under this part that a named individual owes past-due support which has been assigned to such State pursuant to section 602(a)(26) of this title, the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay such amount to the State agency (together with notice of the individual’s home address) for distribution in accordance with section 657(b)(3) of this title."
. 26 U.S.C. § 6402(c) provides:
"The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person’s future liability for an internal revenue tax."
. Mr. Rucker’s former wife assigned her right to support payments to the State of Colorado. See note 1, supra.
. The refund to Rucker consisted of $31 in excess wage withholdings and $95 of the earned income credit. The record does not reflect the dollar amount of the earned income credit withheld to satisfy Mr. Rucker’s support obligation. We assume that some portion of the credit was withheld, inasmuch as the defendants concede that Rucker received only a "proportionate” share. Appellees' Brief at 4; see Rucker v. Secretary of the Treasury, 555 F.Supp. 1051, 1052-53 (D.Colo.1983).
. The court also dismissed intervenor Warner's claims. Warner had not received from the IRS any portion of the earned income credit to which she claimed entitlement. The court apparently reasoned that having adopted the allegations of Rucker’s complaint, Warner lacked independent jurisdictional grounds once Ruck-er’s claim was dismissed as moot. In light of our decision concerning the dismissal of Ruck-er’s claim, we need not reach this issue.
. 26 U.S.C. § 6532(a)(1) provides:
"No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing-the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.”
. 26 U.S.C. § 6401 provides in pertinent part:
(b) If the amount allowable as credits under section ... 43 (relating to earned income credit) exceeds the tax imposed by subtitle A ... the amount of such excess shall be considered an overpayment.”
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_respond1_8_3 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
GRAY et al. v. BLIGHT.
No. 2116.
Circuit Court of Appeals, Tenth Circuit.
June 10, 1940.
R~hearing Denied July 12, 1940.
T. R. Boone of Wichita Falls, Tex., (Earl W. Wilson, of Denver, Colo., on the brief), for appellants.
Cecil M. Draper, of Denver, Colo. (W. A. Alexander, of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
IT. S. Gray and Margaret Gray, individually, and H. S. Gray, as next friend for John Herbert Gray and Peggy Gray, brought this action against Myrta Blight, administratrix of the estate of H. E. Blight, deceased, to recover damages for personal injuries and for damages to the automobile of H. S. Gray.
In their complaint, plaintiffs alleged that the damages resulted from a collision between the automobile of H. S. Gray and an automobile owned, driven, and operated by Blight; that the collision occurred near the town of Winnemucca, Nevada; that it was caused by the negligence of Blight in the management, operation, and control of his automobile; that plaintiffs are residents and citizens of Texas; that at the time of the collision Blight was a resident and citizen of Colorado; that Blight died on or about October 6, 1938; and that Myrta Blight is the duly appointed, qualified, and acting administratrix of the estate of Blight and is a resident and citizen of Colorado.
The administratrix filed a motion to dismiss the action on the ground that the complaint fails to state a claim against her upon which relief can be granted. The trial court sustained the motion, plaintiffs elected not to plead further, and judgment was entered dismissing the action. Plaintiffs have appealed.
The substantive rights of the parties to an action are governed by the lex loci, that is, the law of the place where the right was acquired or the liability was incurred" which constitutes the claim or cause of action. Under the laws of Nevada a cause of action for personal injuries, whether suit has been brought thereon or not, is not abated by reason of the death of the wrongdoer, but survives against his legal representatives. Nevada Comp. Laws, 1929, 1938 Pocket Part, Vol. 1, §§ 240.01, 240.02. It follows that the cause of action survived the death of Blight. On the other hand, the law of the jurisdiction in which relief is sought controls as to all matters pertaining to remedial, as distinguished from substantive rights. The principles are stated in the Restatement, Conflict of Laws, § 390, which in part reads as follows:
“Whether a claim for damages for a tort survives the death of the tort-feasor or of the injured person is determined by the law of the place of wrong. * * *
“(b) If a claim for damages for injury survives the death of the injured person or the wrongdoer, as the case may be, by the law of the place of wrong, recovery may be had upon it by or against the representative of the decedent, provided the law of the state of forum permits the representative of the decedent to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.”
The Restatement finds support in the adjudicated cases.
Sec. 1, ch. 159, 1935 Colo.Stat.Ann., in part reads as follows: “The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First * * *, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”
Sec. 247, ch. 176, 1935 Colo.Stat.Ann., reads as follows: “All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors, administrators and conservators.”
Chapter 176 was first adopted in 1868. See. Stat.Colo. 1868, ch. XC, § 154. It was re-enacted in 1903. See § 167, ch. 181, p. 533, 1903, Colo.Sess.Laws. In the reenactment the phrase “actions at law” was changed to read “actions in law” and the words “and conservators” were added at the end of the section. In Letson v. Brown, 11 Colo.App. 11, 52 P. 287, 288, the court said: “The suit was begun against Brown, who is the administrator of the decedent. The naked question, therefore, is whether the wrongdoer being dead, this suit may be maintained against his personal representative. It could not at the common law, for it was a well-settled principle thereunder that all personal actions, whether by the representatives of a deceased person or against those of one who was dead, died with the injured party; or, as it has been sometimes expressed in other cases as to the wrongdoer, the wrong and the wrongdoer w.ere burie.d in the grave together. We take it to be as well settled in the one case as in the other, and that it is equally true that, where the wrongdoer dies, his personal representative may not be sued for the negligent act, any more than could the representatives of the injured person, he being dead, maintain an action against the living wrongdoer. This principle has been often declared, and it will add nothing to the force of this opinion, nor will it embellish the law, to restate the reasons upon which the rule rests.”
The court then held that an action for wrongful death could not be maintained against the administrator of the estate of the wrongdoer. In Mumford v. Wright, 12 Colo.App. 214, 55 P. 744, 746, the court construed the phrase “trespass for injuries done to the person,” saying: “Torts may be divided into two general classes, — the first, designated as ‘property torts,’ embracing all injuries and damages to property, real or personal; the second, known as ‘personal torts,’ including all .injuries to the person, whether to reputation, feelings, or to the body. A tort which is not an injury to property is a personal tort. * * * It will be readily seen that the chief difficulty lies in determining the exact meaning of the words ‘trespass for injuries done to the person.’ In a recent case this court, in construing this section, held that these words, as there used, could not be construed to mean only trespass vi et armis, but that the exception embraced, also, torts for which trespass on the case must have been brought. Letson v. Brown, 11 Colo.App. 11, 52 P. 287. We now go further, and hold that the words were intended to embrace, and do embrace, all actions for personal torts.”
In Munal v. Brown, C.C., 70 F. 967, United States District Judge Hallett held that an action for damages for personal injuries does not survive to and against executors and administrators by virtue of § 154, ch. XC, Rev. Stat.Colo. 1868.
It is significant that § 247, supra, as first enacted, was embraced in a chapter on wills, executors, and administrators, that when reenacted in 1903, it was embraced in a chapter on wills-estates, and that it was carried forward into the 1935 Colo.Stat.Ann. in the chapter on wills and estates. We are of the opinion that it declares the public policy of Colorado to permit the prosecution of certain causes of action against the executor or administrator of the wrongdoer after his death, but to exclude therefrom causes of action for injuries to the person.
Foreign law will not be enforced in the courts of a state under the doctrine of comity where it is contrary to the pub-lie policy of such state.
A state may deny a remedy in its courts upon a tort arising in another jurisdiction.
In Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609, it was expressly held that § 247, supra, does not offend the provision of Art. 2, § 6, of the state Constitution which provides that “Courts of justice shall be open to every persdn, and a speedy remedy afforded for every injury to person, property or character.”
We conclude that the plaintiffs could not maintain actions m Colorado against the administratrix for personal injuries and that the motion as to those claims was properly sustained.
The plaintiff, H. S. Gray, however, asserted two claims, one for personal injuries in the sum of $3,000, and one for damages to his automobile in the sum of $1,050. The claims were properly joined. Rule 18, Rules of Civil Procedure, 28 U.S.C.A. following section 723c. An action for damages to the automobile could be prosecuted against the adminis-tratrix. See Mumford v. Wright, supra.
The jurisdictional amount is the sum of all the claims which are properly joined. The test of jurisdiction is the amount claimed in good faith and not the actual amount determined to be in controversy. There can be no doubt that both claims were asserted by H. S. Gray in £ood faith and that combined they exceed, exclus,lve °f “terest and costs,_ the sum or vaIue.of $3.’000- 0ther Jurisdictional Prerequisites being; present, it follows that *e. court e"ed “ dismissing the comPlamt as t0,the claim of H. S. Gray for damages to Ins automobile,
The judgment is affirmed as to the plaintiffs Margaret Gray and H. S. Gray, as next fr¡end of John Herbert Q and p G The jud t is reversed as tQ R s_ G and the cause ¡s remand. ed w¡th instructions t0 overrule tfle mo. tion as to the claim of H. S. Gray for damages to his automobile. Three-fourths of the costs will be assessed against the plaintiffs and one-fourth against the ad-ministratrix.
Hereinafter referred to as the plaintiffs.
Hereinafter referred to as the administratrix.
Ormsby v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Curtis v. Campbell, 3 Cir., 76 F.2d 84, 85; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 83; Baise v. Warren, 158 Va. 505, 164 S.E. 655; Jackson v. Anthony, 282 Mass. 540, 185 N.E. 389, 391.
Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426, 428; Stix, Baer & Fuller Co. v. Woesthaus Motor Co., 284 Ill.App. 301, 1 N.E.2d 796, 797; Red-fern v. Redfern, 212 Iowa 454, 236 N.W. 399, 400; Peoria Engraving Co. v. Streator Cold Storage Door Co., 221 Iowa 690, 266 N.W. 548; Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 149, 109 A.L.R. 474; Guardian Life Ins. Co. of America v. Rita Realty Co., 5 A. 2d 45, 48, 17 N.J.Misc. 87; Federal Surety Co. v. Minneapolis Steel & Machinery Co., 8 Cir., 17 F.2d 242, 245; Strawn Mercantile Co. v. First Nat. Bank of Strawn, Tex.Civ.App., 279 S.W. 473, 474; Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U.S. 710, 717. 19 S.Ct. 797, 43 L.Ed. 1144; Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715, 717; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883, 885, 886.
Herzog v. Stern, 264 N.Y. 379, 191 N.E. 23, 24, 25, certiorari denied 293 U.S. 597, 55 S.Ct. 112, 79 L.Ed. 690; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261; In re Killough’s Estate, 148 Misc. 73, 265 N.Y.S. 301.
In Herzog v. Stern, supra, action was brought in New York to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant’s testator in an automobile accident which occurred in Virginia. Both plaintiff and the testator were residents of New York at the time of the accident and when the action was brought the testator’s estate was being administered in New York. In the opinion the court said [264 N.Y. 379, 191 N.E. 24]:
“The question, however, is not whether the cause of action created by the laws of the state of Virginia survives the death of the wrongdoer, but whether the law of this state permits the representative of the deceased wrongdoer to be sued on such a claim. * * *
“This state has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It. may' even be regarded as a vested right against the wrongdoer. There can, however, he no vested right to enforce a claim for damages out of the property of a deceased resident of this state unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. * * *
“Where neither common law nor a statute permits the bringing of an action against executors or administrators of a deceased resident, the courts of this state are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether the cause of action against the representatives of the deceased wrongdoer created by the laws of the state of Virginia offends our public policy. The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. Each state may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister states to permit the enforcement of such rights and obligations against their residents by resort to their courts, but no state has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors
or administrators appointed by the courts of another state. Here comity does not determine the jurisdiction of the courts of the decedent’s domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer.” Compare Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kert-son v. Johnson, 185 Minn. 591, 242 N. W. 329, 85 A.L.R. 1.
See Munal v. Brown, C.C.Colo., 70 F. 967; Kelley v. Union Pac. Ry. Co., 16 Colo. 455, 27 P. 1058, 1060.
See, also, Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609; Clapp v. Williams, 90 Colo. 13, 5 P.2d 872.
Mosko v. Matthews, 87 Colo. 55, 284 P. 1021, 1023; Turnbull v. Cole, 70 Colo. 364, 201 P. 887, 888, 25 A.L.R. 1149; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, 621, L.R.A.1915F, 955, Ann.Cas.1913D, 568.
In the case last cited the court said: “Each state, subject to restrictions of the federal Constitution, determines the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the state.” See, also, St. Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281, 285, 28 S.Ct. 616, 52 L.Ed. 1061; 11 Am. Jur. p. 495, § 183.
Dougherty v. American McKenna Process Co., supra, 99 N.E. page 621; 11 Am.Jur. p. 495, § 183.
Kimel v. Missouri State Life Ins. Co., 10 Cir., 71 F.2d 921, 924; Baltimore & Ohio Southwestern R. R. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Simecek v. United States Nat. Bank of Omaha, 8 Cir., 91 F.2d 214, 217.
Kimel v. Insurance Company, supra, 71 F.2d page 924; Simecek v. Bank, supra, 91 F.2d page 217; St. Paul Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288, 289, 58 S.Ct. 586, 82 L.Ed. 845; Owen M. Bruner Co. v. O. R. Manefee Lumber Co., 9 Cir., 292 F. 985; Brown v. United Gas Public Service Co., 5 Cir., 96 F.2d 264.
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_appel1_3_3 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
BOWLES, Administrator, OPA, v. JONES.
No. 3144.
Circuit Court of Appeals, Tenth Circuit.
Sept. 19, 1945.
A. M. Dreyer, of Washington, D. C. (George Moncharsh, Fleming James, Jr., and David London, all of Washington, D. C., David Love, of Dallas, Tex., and O. B. Martin, of Oklahoma City, Okl., on the brief), for appellant.
Roy C. Lytle, of Oklahoma City, Okl. (D. I. Johnston, of Oklahoma City, Okl., on the brief), for appellee.
Before PHILLIPS and MURRAH, Circuit Judges, and SAVAGE, District Judge.
SAVAGE, District Judge.
This appeal challenges the judgment of the District Court denying to Chester Bowles, Administrator, Office of Price Administration, recovery of statutory damages because of the alleged sale by the defendant, Wayne Jones, of cottonseed meal at prices in excess of the maximum fixed by Revised Maximum Price Regulation 444, 8 F.R. pp. 203, 1121, issued pursuant to the provisions of the Emergency Price Control Act of 1942, as amended, 56 Stat. 23, 58 Stat. 640, 50 U.S.C.A.Appendix § 901 et seq.
The facts are not in dispute. Defendant owned and operated at the same location the only cotton gin and feed store at Newcastle, Oklahoma. The ginning season extended from September through’ January. He purchased the cottonseed from growers who patronized his gin and sold to cottonseed oil mills. He bought cottonseed meal from processors, which was sold the year around to feeders of livestock.
The Administrator on July 31, 1943, issued Maximum Price Regulation 444 which among other things established maximum prices at which cottonseed meal might be sold by processors, grinders, jobbers, wholesalers, retailers and other sellers. A “retailer” was defined as a person who buys the product and resells to a feeder. The defendant, as a retailer, was authorized by the regulation to sell cottonseed meal at a price of $5.50 per ton above the ceiling price paid to his supplier. He did not take advantage of the full markup permitted.
The regulation was superseded on January 10, 1944, by the revised regulation,which did not become effective as to defendant, because of the necessity of correcting a typographical error, until February 3, 1944. The revised regulation fixed-a separate maximum price for sale of cottonseed meal by a “recognized handler”, a term unknown to the cottonseed industry. A “recognized handler” was defined as “any person other than a processor regularly engaged in the business of growing, purchasing or selling cottonseed.” To the conventional definition of the term “retailer” was added a provision expressly excluding recognized handlers from such category. The maximum price for sales by a recognized handler was the same as the maximum price of the processor plus transportation charges. A retailer was allowed the same markup of $5.50 per ton as authorized by the regulation. Thus a retailer was permitted to sell at $5.50 per ton higher than a recognized handler.
On September 16, 1944, the revised regulation was superseded by Food Products Regulation, No. 3. Supplement I thereto dealt with cottonseed meal and abandoned the recognized handler classification. The definition of retailer omitted the provision excluding recognized handlers and once again encompassed the business in which the defendant was engaged. The $5.50 markup for retailers was continued. In his “Statement of Considerations” influencing the adoption of the new regulation, the Administrator made clear the necessity for eliminating the recognized handler classification. He pointed out that most of the persons who fell in this group were growers and ginners of cottonseed; that the prohibition of a markup had tended to divert distribution of cottonseed products from normal channels; that the markups permitted by Supplement I would more closely approximate those normal to the trade prior to price control, and that such markups would promote better distribution of cottonseed products through normal trade channels.
The only sales in controversy are those made from February 3, 1944, to September 16, 1944, the period during which the revised regulation was controlling. During such period the defendant sold 459 one hundred pound bags at the rate of $58 per ton, including state sales tax, the last sale being made on April 10, 1944. His ceiling price, if a recognized handler as contended by the Administrator, was $55.10 per ton, the amount paid to processors plus transportation charges. If he may be classified as a retailer as urged by defendant, his ceiling price was $60.60 per ton. The alleged violation turns on the question of whether defendant was a recognized handler as defined by the revised regulation.
The trial court held that defendant was a recognized handler and had violated the revised regulation, but thought the violation too technical to justify a judgment against the defendant and that the public interest would not be served by such a judgment, especially in view of the revocation of the revised regulation. The reluctance of the trial court to enter a judgment against the defendant under the state of facts here disclosed is understandable. Defendant, while classified as a retailer under the regulation, was allowed a $5.50 per ton margin of profit. The recognized handler under the revised regulation was permitted no markup whatever. If a person so classified bought and sold cottonseed meal he inevitably suffered a loss. After the effective date of the new regulation, the defendant again became a retailer with an authorized margin of profit. The Statement of Considerations issued by the Administrator contemporaneously with the new regulation indicated a realization that the inclusion of the recognized handler classification in the revised regulation was improvident. Since the Administrator obviously acknowledged that a mistake was made by denying to recognized handlers a profit during the brief period that the revised regulation was in force, the trial court apparently concluded that this action should not have been instituted. But the revocation of the revised regulation did not extinguish the liability which accrued while it was in effect. United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290. There is no suggestion of invalidity. Indeed, its validity could not be questioned here. Jurisdiction to pass upon the validity of regulations promulgated by the Administrator is committed exclusively to the Emergency Court of Appeals, the special court created by the Emergency Price Control Act. Bowles v. Nu Way Laundry Co., 10 Cir., 144 F.2d 741. The responsibility of determining whether a violation of a regulation is of sufficient consequence to warrant prosecuting an action in the public interest to recover statutory damages rests with the Administrator. The decision involves questions of administrative policy in the enforcement of the Act wholly outside the scope of judicial inquiry.
The defendant concedes that the judgment cannot be supported on the grounds stated by the trial court. He asserts that the court rightfully entered judgment for the defendant but for a wrong reason. He seeks to uphold the judgment on two grounds, (1) that the defendant was not a recognized handler as defined by the revised regulation, and, (2) that the Administrator could not maintain the action.
As to the first contention the conclusion that defendant was a recognized handler as defined by the revised regulation is inescapable. He was not a processor and was regularly engaged in the business of purchasing and selling cottonseed. It is suggested that defendant was engaged in two businesses; that in the business of ginning cotton and buying and selling cottonseed he was a recognized handler, but that in the business of selling feed, including cottonseed meal, he was a retailer. The fallacy of this argument is apparent. The definition of retailer found in the revised regulation is controlling and was so drafted as to expressly exclude recognized handlers. Fox v. Standard Oil Company, 294 U.S. 87, 55 S.Ct. 333, 79 L.Ed. 780; Marlene Linens v. Bowles, Em.App., 144 F.2d 874.
The second contention of defendant that the Administrator may not maintain this action deserves but scant attention. Section 205(e) of the Act provides: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption, other than in the course of trade or business may bring an action * * * ” and if — “the buyer is not entitled to bring suit or action under this subsection, ,the Administrator may bring such action under this subsection on behalf of the United States.” If the feeders bought the cottonseed meal from defendant for consumption in the course of trade or business, they were not entitled to bring the action and the cause of action vested in the Administrator. In the agreed statement of facts upon which the case was submitted to the court we find this statement: " “Sales * * of cottonseed meal referred to herein were made to feeders or other purchasers in the course of trade or business of such purchasers.” But laying aside the stipulation, we think it too clear for argument that feeders of livestock are engaged in business and that the meal purchased by such feeders was for consumption in the course of business. Bowles v. Rogers, 7 Cir., 149 F.2d 1010; Speten v. Bowles, 8 Cir., 146 F.2d 602. It follows that the action was properly instituted by the Administrator.
At a new trial the court may, if the issue be tendered in mitigation of damages, determine whether the violations were “neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation” as provided in Sec. 108(b) of the Stabilization Extension Act of 1944, 58 Stat. 640, amending Sec. 205(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix § 925(e). See Speten v. Bowles, supra; Bowles v. Sharp, 8 Cir., 149 F.2d 148.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Hereinafter called revised regulation.
Hereinafter called regulation.
Hereinafter called new regulation.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer: |
songer_genapel2 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
GRAY et al. v. BLIGHT.
No. 2116.
Circuit Court of Appeals, Tenth Circuit.
June 10, 1940.
R~hearing Denied July 12, 1940.
T. R. Boone of Wichita Falls, Tex., (Earl W. Wilson, of Denver, Colo., on the brief), for appellants.
Cecil M. Draper, of Denver, Colo. (W. A. Alexander, of Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
PHILLIPS, Circuit Judge.
IT. S. Gray and Margaret Gray, individually, and H. S. Gray, as next friend for John Herbert Gray and Peggy Gray, brought this action against Myrta Blight, administratrix of the estate of H. E. Blight, deceased, to recover damages for personal injuries and for damages to the automobile of H. S. Gray.
In their complaint, plaintiffs alleged that the damages resulted from a collision between the automobile of H. S. Gray and an automobile owned, driven, and operated by Blight; that the collision occurred near the town of Winnemucca, Nevada; that it was caused by the negligence of Blight in the management, operation, and control of his automobile; that plaintiffs are residents and citizens of Texas; that at the time of the collision Blight was a resident and citizen of Colorado; that Blight died on or about October 6, 1938; and that Myrta Blight is the duly appointed, qualified, and acting administratrix of the estate of Blight and is a resident and citizen of Colorado.
The administratrix filed a motion to dismiss the action on the ground that the complaint fails to state a claim against her upon which relief can be granted. The trial court sustained the motion, plaintiffs elected not to plead further, and judgment was entered dismissing the action. Plaintiffs have appealed.
The substantive rights of the parties to an action are governed by the lex loci, that is, the law of the place where the right was acquired or the liability was incurred" which constitutes the claim or cause of action. Under the laws of Nevada a cause of action for personal injuries, whether suit has been brought thereon or not, is not abated by reason of the death of the wrongdoer, but survives against his legal representatives. Nevada Comp. Laws, 1929, 1938 Pocket Part, Vol. 1, §§ 240.01, 240.02. It follows that the cause of action survived the death of Blight. On the other hand, the law of the jurisdiction in which relief is sought controls as to all matters pertaining to remedial, as distinguished from substantive rights. The principles are stated in the Restatement, Conflict of Laws, § 390, which in part reads as follows:
“Whether a claim for damages for a tort survives the death of the tort-feasor or of the injured person is determined by the law of the place of wrong. * * *
“(b) If a claim for damages for injury survives the death of the injured person or the wrongdoer, as the case may be, by the law of the place of wrong, recovery may be had upon it by or against the representative of the decedent, provided the law of the state of forum permits the representative of the decedent to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.”
The Restatement finds support in the adjudicated cases.
Sec. 1, ch. 159, 1935 Colo.Stat.Ann., in part reads as follows: “The common law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First * * *, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”
Sec. 247, ch. 176, 1935 Colo.Stat.Ann., reads as follows: “All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors, administrators and conservators.”
Chapter 176 was first adopted in 1868. See. Stat.Colo. 1868, ch. XC, § 154. It was re-enacted in 1903. See § 167, ch. 181, p. 533, 1903, Colo.Sess.Laws. In the reenactment the phrase “actions at law” was changed to read “actions in law” and the words “and conservators” were added at the end of the section. In Letson v. Brown, 11 Colo.App. 11, 52 P. 287, 288, the court said: “The suit was begun against Brown, who is the administrator of the decedent. The naked question, therefore, is whether the wrongdoer being dead, this suit may be maintained against his personal representative. It could not at the common law, for it was a well-settled principle thereunder that all personal actions, whether by the representatives of a deceased person or against those of one who was dead, died with the injured party; or, as it has been sometimes expressed in other cases as to the wrongdoer, the wrong and the wrongdoer w.ere burie.d in the grave together. We take it to be as well settled in the one case as in the other, and that it is equally true that, where the wrongdoer dies, his personal representative may not be sued for the negligent act, any more than could the representatives of the injured person, he being dead, maintain an action against the living wrongdoer. This principle has been often declared, and it will add nothing to the force of this opinion, nor will it embellish the law, to restate the reasons upon which the rule rests.”
The court then held that an action for wrongful death could not be maintained against the administrator of the estate of the wrongdoer. In Mumford v. Wright, 12 Colo.App. 214, 55 P. 744, 746, the court construed the phrase “trespass for injuries done to the person,” saying: “Torts may be divided into two general classes, — the first, designated as ‘property torts,’ embracing all injuries and damages to property, real or personal; the second, known as ‘personal torts,’ including all .injuries to the person, whether to reputation, feelings, or to the body. A tort which is not an injury to property is a personal tort. * * * It will be readily seen that the chief difficulty lies in determining the exact meaning of the words ‘trespass for injuries done to the person.’ In a recent case this court, in construing this section, held that these words, as there used, could not be construed to mean only trespass vi et armis, but that the exception embraced, also, torts for which trespass on the case must have been brought. Letson v. Brown, 11 Colo.App. 11, 52 P. 287. We now go further, and hold that the words were intended to embrace, and do embrace, all actions for personal torts.”
In Munal v. Brown, C.C., 70 F. 967, United States District Judge Hallett held that an action for damages for personal injuries does not survive to and against executors and administrators by virtue of § 154, ch. XC, Rev. Stat.Colo. 1868.
It is significant that § 247, supra, as first enacted, was embraced in a chapter on wills, executors, and administrators, that when reenacted in 1903, it was embraced in a chapter on wills-estates, and that it was carried forward into the 1935 Colo.Stat.Ann. in the chapter on wills and estates. We are of the opinion that it declares the public policy of Colorado to permit the prosecution of certain causes of action against the executor or administrator of the wrongdoer after his death, but to exclude therefrom causes of action for injuries to the person.
Foreign law will not be enforced in the courts of a state under the doctrine of comity where it is contrary to the pub-lie policy of such state.
A state may deny a remedy in its courts upon a tort arising in another jurisdiction.
In Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609, it was expressly held that § 247, supra, does not offend the provision of Art. 2, § 6, of the state Constitution which provides that “Courts of justice shall be open to every persdn, and a speedy remedy afforded for every injury to person, property or character.”
We conclude that the plaintiffs could not maintain actions m Colorado against the administratrix for personal injuries and that the motion as to those claims was properly sustained.
The plaintiff, H. S. Gray, however, asserted two claims, one for personal injuries in the sum of $3,000, and one for damages to his automobile in the sum of $1,050. The claims were properly joined. Rule 18, Rules of Civil Procedure, 28 U.S.C.A. following section 723c. An action for damages to the automobile could be prosecuted against the adminis-tratrix. See Mumford v. Wright, supra.
The jurisdictional amount is the sum of all the claims which are properly joined. The test of jurisdiction is the amount claimed in good faith and not the actual amount determined to be in controversy. There can be no doubt that both claims were asserted by H. S. Gray in £ood faith and that combined they exceed, exclus,lve °f “terest and costs,_ the sum or vaIue.of $3.’000- 0ther Jurisdictional Prerequisites being; present, it follows that *e. court e"ed “ dismissing the comPlamt as t0,the claim of H. S. Gray for damages to Ins automobile,
The judgment is affirmed as to the plaintiffs Margaret Gray and H. S. Gray, as next fr¡end of John Herbert Q and p G The jud t is reversed as tQ R s_ G and the cause ¡s remand. ed w¡th instructions t0 overrule tfle mo. tion as to the claim of H. S. Gray for damages to his automobile. Three-fourths of the costs will be assessed against the plaintiffs and one-fourth against the ad-ministratrix.
Hereinafter referred to as the plaintiffs.
Hereinafter referred to as the administratrix.
Ormsby v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, 92 A.L.R. 1499; Curtis v. Campbell, 3 Cir., 76 F.2d 84, 85; Boothe v. Teche Lines, Inc., 165 Miss. 343, 143 So. 418, 420; Wise v. Hollowell, 205 N.C. 286, 171 S.E. 82, 83; Baise v. Warren, 158 Va. 505, 164 S.E. 655; Jackson v. Anthony, 282 Mass. 540, 185 N.E. 389, 391.
Bourestom v. Bourestom, 231 Wis. 666, 285 N.W. 426, 428; Stix, Baer & Fuller Co. v. Woesthaus Motor Co., 284 Ill.App. 301, 1 N.E.2d 796, 797; Red-fern v. Redfern, 212 Iowa 454, 236 N.W. 399, 400; Peoria Engraving Co. v. Streator Cold Storage Door Co., 221 Iowa 690, 266 N.W. 548; Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 149, 109 A.L.R. 474; Guardian Life Ins. Co. of America v. Rita Realty Co., 5 A. 2d 45, 48, 17 N.J.Misc. 87; Federal Surety Co. v. Minneapolis Steel & Machinery Co., 8 Cir., 17 F.2d 242, 245; Strawn Mercantile Co. v. First Nat. Bank of Strawn, Tex.Civ.App., 279 S.W. 473, 474; Chicago, Rock Island & Pacific Ry. Co. v. Sturm, 174 U.S. 710, 717. 19 S.Ct. 797, 43 L.Ed. 1144; Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715, 717; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883, 885, 886.
Herzog v. Stern, 264 N.Y. 379, 191 N.E. 23, 24, 25, certiorari denied 293 U.S. 597, 55 S.Ct. 112, 79 L.Ed. 690; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261; In re Killough’s Estate, 148 Misc. 73, 265 N.Y.S. 301.
In Herzog v. Stern, supra, action was brought in New York to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant’s testator in an automobile accident which occurred in Virginia. Both plaintiff and the testator were residents of New York at the time of the accident and when the action was brought the testator’s estate was being administered in New York. In the opinion the court said [264 N.Y. 379, 191 N.E. 24]:
“The question, however, is not whether the cause of action created by the laws of the state of Virginia survives the death of the wrongdoer, but whether the law of this state permits the representative of the deceased wrongdoer to be sued on such a claim. * * *
“This state has undoubted power to determine the devolution of the property of a deceased resident and how such property shall be administered. It determines upon what claims a suit may be brought against the representatives of the decedent, and payment be enforced out of the assets of the estate. A transitory cause of action may constitute a property right. It. may' even be regarded as a vested right against the wrongdoer. There can, however, he no vested right to enforce a claim for damages out of the property of a deceased resident of this state unless there is a law which permits the property of such a decedent to be applied upon the claim. At common law a claim for personal injury did not survive and could not be enforced out of the property or against the personal representatives of the deceased wrongdoer. The common law has in this regard not been changed by the Legislature. * * *
“Where neither common law nor a statute permits the bringing of an action against executors or administrators of a deceased resident, the courts of this state are without jurisdiction to pass upon such a cause of action. There is here no room for speculation as to whether the cause of action against the representatives of the deceased wrongdoer created by the laws of the state of Virginia offends our public policy. The rights and obligations of executors and administrators appointed by our courts are defined by our law, and our courts are without jurisdiction to grant a judgment binding on the executors or administrators appointed here unless our law makes provision for such actions against executors and administrators. Each state may define the rights and obligations of those who come within its territorial bounds, and comity will ordinarily cause the sister states to permit the enforcement of such rights and obligations against their residents by resort to their courts, but no state has any power to provide that such rights and obligations may be enforced out of the property of a deceased wrongdoer in the possession of executors
or administrators appointed by the courts of another state. Here comity does not determine the jurisdiction of the courts of the decedent’s domicile. The courts are without jurisdiction, because neither common law nor statutory law provides for the maintenance of any action for personal injury against the executors or administrators of a deceased wrongdoer.” Compare Chubbuck v. Holloway, 182 Minn. 225, 234 N.W. 314, 868; Kert-son v. Johnson, 185 Minn. 591, 242 N. W. 329, 85 A.L.R. 1.
See Munal v. Brown, C.C.Colo., 70 F. 967; Kelley v. Union Pac. Ry. Co., 16 Colo. 455, 27 P. 1058, 1060.
See, also, Stanley v. Petherbridge, 96 Colo. 293, 42 P.2d 609; Clapp v. Williams, 90 Colo. 13, 5 P.2d 872.
Mosko v. Matthews, 87 Colo. 55, 284 P. 1021, 1023; Turnbull v. Cole, 70 Colo. 364, 201 P. 887, 888, 25 A.L.R. 1149; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, 621, L.R.A.1915F, 955, Ann.Cas.1913D, 568.
In the case last cited the court said: “Each state, subject to restrictions of the federal Constitution, determines the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the state.” See, also, St. Louis & Iron Mountain Ry. v. Taylor, 210 U.S. 281, 285, 28 S.Ct. 616, 52 L.Ed. 1061; 11 Am. Jur. p. 495, § 183.
Dougherty v. American McKenna Process Co., supra, 99 N.E. page 621; 11 Am.Jur. p. 495, § 183.
Kimel v. Missouri State Life Ins. Co., 10 Cir., 71 F.2d 921, 924; Baltimore & Ohio Southwestern R. R. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Simecek v. United States Nat. Bank of Omaha, 8 Cir., 91 F.2d 214, 217.
Kimel v. Insurance Company, supra, 71 F.2d page 924; Simecek v. Bank, supra, 91 F.2d page 217; St. Paul Indemnity Co. v. Red Cab Company, 303 U.S. 283, 288, 289, 58 S.Ct. 586, 82 L.Ed. 845; Owen M. Bruner Co. v. O. R. Manefee Lumber Co., 9 Cir., 292 F. 985; Brown v. United Gas Public Service Co., 5 Cir., 96 F.2d 264.
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_respond1_1_4 | 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 "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LEAD COMPANY, a Corporation, Appellant, v. Bernard M. WOLFE and Frederick J. Dannenfelser, Individuals and Copartners, Doing Business Under the Names and Styles “Dutch Paint Co.,” and “Manning-Mitchell Paint Co.,” Appellees.
No. 13737.
United States Court of Appeals Ninth Circuit.
May 17, 1955.
Rehearing Denied July 14, 1955.
See, also, 15 F.R.D. 61.
Robert E. Burns, Crimmins, Kent, Draper & Bradley, San Francisco, Cal., James D. Ewing, New York City, Milton Handler, San Francisco, Cal., John B. Henrick, New York City, for appellant.
James M. Naylor, Frank A. Neal, Naylor & Lassagne, San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, POPE, Circuit Judge, and BYRNE, District Judge.
POPE, Circuit Judge.
The plaintiffs-appellees, citizens of the State of California, brought a suit for declaratory relief against the defendant-appellant, a New Jersey corporation, praying for an adjudication that the plaintiffs’ use of the words “Dutch”, “Dutch Paint Company” and “Dutch Paint” in connection with the paint and.paint products manufactured and processed by them does not infringe the rights of appellant in its trade mark “Dutch Boy”.
Appellant, by counterclaim, alleged its prior adoption and use of the trade mark “Dutch Boy”, the registration of this mark, for paint products, in the United States Patent Office in 1937; that it has built up a large and profitable business in its products identified with that trade mark and has spent large sums in advertising it; that since 1949 the appellees, with knowledge of appellant’s trade mark, have used the words “Dutch Paint Company”, “Dutch” and “Dutch Paint” in connection with their manufacture and advertising of paint products in a manner calculated and liable to confuse and deceive the public in believing that appellees’ products are manufactured by or originate with the appellant; that this was unfair competition as well as infringement of appellant’s trade mark and its registration.
Upon this counterclaim the appellant sought an injunction against further use by the appellees of the words objected to; an accounting of profits from the alleged infringement of the trade mark, and an award of damages.
The case was tried and all testimony taken before Honorable Herbert W. Erskine, District Judge, who died before he could make or file any findings in the case. By agreement of the parties the cause was submitted to the Honorable Edward P. Murphy upon the record of the testimony and other evidence previously presented to Judge Erskine. The court made findings of fact and entered a judgment in favor of the appellees as plaintiffs and dismissed the appellant’s counterclaim. Upon this appeal the specifications of error in the main assert the right of appellant- to have judgment upon this counterclaim.
The record shows that the appellant -is a large and well known manufacturer of paint and paint products which it has sold to the trade and the consuming public throughout the country for more than 40 years. In 1907 it adopted a picture of a Dutch boy as its trade mark for white lead. Subsequently it commenced using the words “Dutch Boy” in its advertising and these words were applied successively to linseed oil, red lead paint, white lead paint, flatting oil, wall primer and other paint products. The word trade mark “Dutch Boy” was registered in the Patent Office in 1937 for a number of paints and paint products including inside and outside paints, primers, undercoats, lacquers and varnishes. All these uses antedated by a considerable number of years the appellees’ entry into the paint business. In connection with its sales of Dutch Boy paints appellant made very large expenditures devoted to advertising its Dutch Boy trade mark. Its products were shown to be regularly sold through independent dealers as well as through its 39 retail stores. There were some 1200 of these dealers in the eleven' Pacific Coast states. Appellant's sales of paint products bearing this trade mark have aggregated over six hundred million dollars and it has expended in excess of nineteen million dollars in national advertising.
The appellees on the other hand entered the paint business in 1946 after their discharge from the Navy where they had had some training in connection with the naval paint program. After initiating the paint business and incorporating their enterprise under the name of Manning-Mitchell, Inc., they had some difficulty in procuring raw materials for their marine paints. Then in the same year they acquired for some $9,000 a partnership concern known as “Dutch Paint Co.” at San Francisco which operated a small paint factory and which had on hand some labels marked “Dutch Paint”. Thereafter the apellees formed a new corporation called “Dutch Paint Company” and continued to increase the manufacture and sale of household and other paints using labels and other marks with the names “Dutch” and “Dutch Paint”. It is of this use that appellant complains in its counterclaim.
The record shows beyond possible controversy that the appellants had a trade mark valid both at common law and under the applicable federal acts. Neither the word “Dutch”, nor the words “Dutch Boy” are used otherwise than in a fictitious, arbitrary and fanciful manner. Of course the word “Dutch” is capable of being used as a geographical term. If used to indicate a product made in Holland or by some Dutch process, it could be a descriptive term. However, the record shows without doubt that appellant’s trade mark does not contain words having either a geographical or descriptive sense. In this respect the case is governed by Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 271, 60 L.Ed. 629, where the court said: “We do not regard the words ‘The American Girl,’ adopted and employed by complainant in connection with shoes of its manufacture, as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America, or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant’s predecessors to designate shoes of their manufacture. We are convinced that it was subject to appropriation for that purpose, and it abundantly appears to have been appropriated and used by complainant and those under whom it claims. * * * ‘The American Girl’ would be as descriptive of almost any article of manufacture as of shoes; that is to say, not descriptive at all.”
Here there is no likelihood that the use of the name “Dutch” or “Dutch Boy” in connection with the appellant’s goods would be understood by purchasers as representing that the goods or their constitutent materials were produced or processed in Holland or that they are of the same distinctive kind or quality as those produced, processed or used in that place.
The record and briefs do not disclose any assertion on the part of the appellees that appellant’s trade mark was wholly without validity. Appellees however contend that the mark is not a “strong” but a “weak” mark, citing as their authority for this position this court’s decisions in Sunbeam Furniture Corporation v. Sunbeam Corporation, 9 Cir., 191 F.2d 141, and Sunbeam Lighting Co. v. Sunbeam Corporation, 9 Cir., 183 F.2d 969. We find no resemblance between this case and our Sunbeam cases for in those cases it was pointed out that the name Sunbeam was “a meaningful word, a joyful word, a word of comfort, and of health.” It was therefore held that its use was not sufficiently fanciful to warrant the granting of an injunction not merely against the use of the term “Sunbeam” on the defendants’ lamps but against the use of the firm name “Sunbeam Furniture Corporation.”
The fact that' “Dutch” as a dictionary term has a geographical significance and that it would be possible for a manufacturer to use that word in connection with his business in its primary geographical sense is beside the point here. Thus one who manufactures paint in Holland cannot be restrained from selling his product as “Dutch” paint any more than a watch manufacturer in Switzerland can be prevented from selling his “Swiss” watches. No use of the word “Dutch” in a geographical sense is involved here for neither appellant nor appellees are marketing products or goods “likely to be understood by purchasers as representing that the goods or their constituent materials were produced or processed in the place designated by the name or that they are of some distinctive kind or quality as the goods produced, processed or used in that place.”
The distinction is well made by the Supreme Court in Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., supra, where it contrasted with the valid use of “The American Girl” the supposititious use of a mark “American Shoes”. As the appellees are not making their paints in Holland or using any Dutch processes or giving them any distinctive Dutch quality, the fact that others might have done so is of no significance in this case. There is no question also that “Dutch” has certain descriptive meanings. Thus “Dutch Kalsomine Brushes”, the record shows, are paint brushes of a special construction; “Dutch White” and “Dutch Blue” are terms describing certain colors under which some paints are sold although not those of the appellees; “Dutch Process”, or “Old Dutch Process” is a means of making white lead used in Holland and some manufacturers of white lead use that process and make reference to it on their labels; “Dutch Enamel” is a term descriptive of a kind of enamel first developed in Holland. Neither appellant nor appellees are engaged in the utilization of any such processes and the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” used by appellees are not claimed to have any relation to any product now or ever made in Holland or any process, color, or other description related to Holland or the Dutch.
We conclude therefore that the appellant’s trade-mark was one entitled to full protection both under the rules of the common law and under the federal acts.
Under the rules and decisions generally applicable, the appellees’ use of the terms here complained of would constitute an actionable infringement of the appellant’s trade-mark. We note here, in connection with appellees’ competing business, the use of a designation which is “confusingly similar to the [appellant’s] trade name.” Under § 32 of the Lanham Act, 15 U.S.C.A. § 1114, to the protection of which appellant is entitled, the infringement is the use, without the registrant’s consent, of “any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * *
That we have a case here of confusing similarity is very apparent and the facts of the case are not to be distinguished from those in a multitude of decisions finding infringement. Among those cases are Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195; Brooks Bros. v. Brooks Clothing of California, 9 Cir., 158 F.2d 798, adopting opinion D.C., 60 F.Supp. 442; Lane Bryant, Inc. v. Maternity Lane, 9 Cir., 173 F.2d 559. Here there is confusing similarity between the appellant’s trademark and the words used by the appellees in respect to appearance, sound and meaning. The great mass of cases cited by Callman in § 82.1 of his work on Unfair Competition and Trade-Marks, 2d Ed., in which confusing similarity in sound, appearance or meaning, or in some of these respects, was found to exist, make it clear that in using the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” in connection with their products, appellees are guilty of infringement of the appellant’s trade mark. The evidence here satisfies the standards of proof set forth in Mershon v. Pachmayr, 9 Cir., 220 F.2d 879: “There is ample evidence in the case to require the finding that there was material confusion just as the court said there would be, and that there was strong likelihood that there would be confusion, although actual confusion is not essential in the proof of infringing a trade-mark.”
However, the appellant produced a mass of evidence which was uncontradicted showing some 290 instances in which paint dealers, painters, industrial users of paints and retail customers were actually deceived or misled by the appellees’ use of “Dutch”, “Dutch Paint”, “Dutch Paint Company”, and by their advertisements, into believing that appellees’ paints were actually the appellant’s Dutch Boy paints. This evidence of actual confusion showed that it occurred in some 20 communities in California, and in communities in Washington, Oregon, Idaho, Utah, Wyoming, and Nevada, and even in Hawaii. Some of these witnesses were experienced painters or construction superintendents; others were individual consumers purchasing for their own use. Testimony was given by some of appellant’s dealers and employees who related many instances of confusion on the part of the consumers visiting the stores. In addition there was substantial testimony that dealers in paints who were accustomed to purchase paint at wholesale, were confused into believing that the appellees’ “Dutch Paint” was appellant’s “Dutch Boy Paint”.
Notwithstanding this extensive proof not only of likelihood of confusion but of actual confusion as well, and notwithstanding the evidence was uncontradicted, the trial court found that there were no purchasers who were confused as between defendant’s and plaintiffs’ products and concluded that there was a lack of similarity because the names differed in sound, significance and appearance. We are unable to perceive how the court could have made such a finding in the light of this record. The court’s findings upon this point are clearly erroneous.
The record also shows that not only did the appellees beginning in 1946 adopt these confusingly similar names but shortly thereafter the method of advertising their paint showed that their continued use of these names and the passing off of their products thereunder was intentionally false and misleading and done with a purpose on their part of deceiving prospective purchasers. Thus appellees advertised “New Lower Than Pre-War Prices on Dutch Paint”. The facts were, as appellees knew them, that their Dutch paints were not in business before the war and they had no pre-war prices. They also knew that the appellant’s Dutch Boy paint had been sold long prior to the war. They also advertised “How - Can $2.95 Buy $6 Paint?”, offering their Dutch paint “at approximately 50% of the normal price”. Appellees never sold $6 paints; $2.95 was their normal price, although it was approximately 50% of the normal Dutch Boy price. They advertised “Quality Famous Dutch Paint” which they represented as selling for half price at $2.95.
The proof of this deliberately false and misleading use of advertising in connection with the appellees’ own infringement, has an important bearing upon the inferences to be drawn with respect to the existence of confusion. The rule respecting the consequences of this intent to deceive was stated in My-T-Fine Corporation v. Samuels, 2 Cir., 69 F.2d 76, 77, as follows: “But when it [intent to deceive] appears, we think that it has an important procedural result; a late comer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile. Prima facie the court will treat his opinion so disclosed as expert and will not assume that it was erroneous. * * * He may indeed succeed in showing that it was; that, however bad his purpose, it will fail in execution; if he does, he will win. * * * But such an intent raises a presumption that customers will be deceived.”
Appellees attempt to meet the appellant’s showing of infringement by setting up defenses of laches, acquiescence and estoppel. The record does not sustain any of them.
The record is that early in 1947, a then partner and associate of the appellees assured the appellant’s manager that they intended to discontinue their use of the name “Dutch” as soon as they had exhausted their supply of labels. In March, 1948, there was a discussion between appellant’s advertising manager and the appellees in which the former discussed with appellees the question of the appellees abandoning the use of the word “Dutch”. The advertising manager testified that appellees indicated their intention to drop this brand as soon as there was an ample supply of raw materials for other kinds of paints. The appellees’ version of the conversation is that the manager asked them if they had thought of abandoning the use of the word “Dutch” and they replied that they could not do so as they were obliged to manufacture Dutch paints because of pigment shortage.
Whichever be the correct version, plainly appellant was endeavoring to canvass the possibility of removing the infringement in 1948. The suit was begun in October, 1949. The attempted proof of laches is too trivial to require serious consideration. In the light of the intentional and fraudulent use of appellant’s trade mark, the defense here is a frivolous one. Menendez v. Holt, 128 U.S. 514, 523, 9 S.Ct. 143, 32 L.Ed. 526.
The claim of acquiescence is equally groundless. Thus, it is argued that on the occasion previously mentioned when the advertising manager of appellant met with the appellees, the manager confined his objections to certain radio advertising on a Sacramento radio station; but that the failure of the advertising manager to make additional objections particularly to the newspaper advertisements which appellees were running, and his failure to make a stronger showing of force against the use of the word “Dutch Paint” in connection with appellees’ product, amounted to an acquiescence.
The record also shows that some of the appellant’s employees and salesmen during the years 1946-1947-1948 occasionally visited the appellees’ offices and knew that the word “Dutch” was displayed on signs and paint cans. There was also produced at the trial a letter written by one Kaegebehn, the manager of appellant’s patent department, to the appellant’s advertising manager. This contained a statement that “Dutch” is a geographical name, and as such, it is not registrable as a trademark, but if used exclusively, it may acquire secondary trademark significance. However our mark is Dutch Boy and we can only enforce that mark against others under the trade mark laws.” The writer of the letter was not a lawyer; the letter was an intra-company communication, never addressed to anyone outside the appellant company, and there was no reliance upon it by appellees. Cf. Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407.
Appellees began their use of the words here objected to in 1946. In 1947 they gave assurance they would shortly discontinue this use. In March,. 1948, appellant was negotiating with appellees in an effort to procure a promise to discontinue. Formal notice of infringement was given in July, 1949, and the suit begun in October of the same year. Laches, acquiescence, or estoppel are wholly wanting here.
The appellees attempted to show that a large number of other persons had used the name “Dutch” or some combination thereof in connection with sales of paint, and it is contended that the showing made in this respect justifies the trial court’s findings and judgment against the appellant’s claim of a valid trade mark and infringement thereof. The suggestion is that these third party uses of the term “Dutch” in the paint industry have been so numerous and so general that the mark must be held to be a weak mark within the meaning of the Sunbeam cases, supra, and further, that the term “Dutch” has become publici juris as in the cases of “aspirin” and “cellophane”.
Appellees have attached to their brief in this court a tabulation which was an exhibit in the court below showing uses which third parties, manufacturers or dealers in paint have made of names which include the word “Dutch”. Substantially the same information was portrayed in a photograph which was also an exhibit and which showed in color paint cans to which were attached labels with trade marks using the word “Dutch”. A study of the 39 listed uses of the word “Dutch” reveals that some of them are duplications, some relate to uses discontinued many years ago, some were used but to a limited extent and in single communities or limited localities far from the Pacific Coast to which appellees’ operations were confined, and for the most part in the eastern portion of the United States, and some with respect to which there was no proof of any isale whatever; some relate to non-paint products such as floor wax. The remaining proven third party uses of the word “Dutch” in connection with paint sale or manufacture are too inconsequential to establish a claim of pub-lid juris or the claim that appellant’s mark has become a weak mark or to justify on any other theory the acts of these appellees. It may be that some of these third persons may also have been guilty of wrongful infringement, but such would not be a defense or justification for the appellees. It is no excuse for them to say that others have been guilty of the same wrong. Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 34 F.2d 774; Potter-Wrightington, Inc., v. Ward Baking Co., 1 Cir., 298 F. 398, affirming D.C., 288 F. 597. Uses of the offending word in local areas in the East are no justification for acts of appellees on the Pacific Coast.
The findings of the trial court fail to note that these third party uses fall into these various categories. The court failed to note that, as earlier here indicated, no one questions the possibility of using the word “Dutch” in a geographical or descriptive sense. Some of the third party uses listed in the findings, without noting this distinction, were instances where such proper and unobjectionable uses were made, as in the case of “Dutch Kalsomine”, “Dutch White”, “Old Dutch” process. Again there was no breakdown of those uses which were local and far distant from the area of appellees’ user. And since the trial court’s findings were based upon the same cold record which is before us, we are “in as good a position as the trial court was to appraise the evidence.” We find no evidence to warrant a holding that appellant’s trade-mark had become publici juris, or that the word “Dutch”, when used as appellees have done, was publici juris. The third party uses as are shown are not such as would permit an inference of acquiescence. We find here no evidence that an originally distinctive mark changed or developed into a generic term.
There is also a contention that there was an abandonment of the trademark by the appellant. No evidence thereof appears in this regard for there was no evidence of any intent whatever to abandon. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31, 21 S.Ct. 7, 45 L.Ed. 60.
What we have said heretofore has in terms referred to the trade-mark infringement. That, however, is but one aspect of the larger field of unfair competition. It requires no extended discussion in view of what we have said to demonstrate that the acts here complained of are not only an infringement of trade-mark but they constitute acts of unfair competition. The law is stated in Weinstock, Lubin & Co. v. Marks, 109 Cal. 529, 541, 42 P. 142, 146, 30 L.R.A. 182: “ * * * Upon what principle of law can a court of equity say, ‘If you cheat and defraud your competitor in business by taking his name, the court will give relief against you, but, if you cheat and defraud him by assuming a disguise of a different character, your acts are beyond the law?’ Equity will not concern itself about the means by which fraud is done. It is the results arising from the means — it is the fraud itself — with which it deals. The foregoing principles of law do not apply alone to the protection of parties having trademarks and trade-names. They reach away beyond that, and apply to all cases where fraud is practiced by one in securing the trade of a rival dealer; and these ways are as many and as various as the ingenuity of the dishonest schemer can invent.”
In order to make out a case of unfair competition, it is only required that the natural and necessary consequence of appellees’ conduct in this respect was such as'to cause deception. The case of Ross-Whitney Corp. v. Smith Kline & French Lab., 9 Cir., 207 F.2d 190, sufficiently demonstrates that wholly apart from trade-mark infringement, the appellant had here made out a case of unfair competition and that the court below had jurisdiction thereof.
In view of the demonstration in the court below that the appellees’ use of “Dutch Paint” and “Dutch Paint Company” was by false and misleading advertising, and the consequent demonstration that there was a deliberate and intentional design to cause confusion and mistake and to deceive purchasers, the conclusion must be that whether the cause be viewed as one of unfair competition or as one of infringement of a registered trade-mark, appellant is entitled not merely to relief by injunction but to an accounting of profits and damages as well. “But where an injunction is had against unfair competition, willfully conducted by the defendant with knowledge of the plaintiff’s rights, an accounting normally follows.” Matzger v. Vinikow, 9 Cir., 17 F.2d 581, 584.
As for appellant's rights under the trade-mark acts, since this is not a case where there has been “no showing of fraud or palming off”, cf. Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 131, 67 S.Ct. 1136, 1139, 91 L.Ed. 1386, but where the showing is quite to the contrary and the intentional misleading has been demonstrated, appellant is entitled not merely- to an injunction as prayed for but to an accounting of appellees’ profits and a - recovery of any-damages sustained under the provisions of Title 15 U.S.C.A. §1117, pursuant to the rule of Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381.
Accordingly, the judgment is reversed- and the cause is remanded with directions to dismiss the appellees’ complaint, to grant to the appellant an injunction as prayed for in its answér and- counter-, claim, and to proceed to take ah accounting of the' appellees’ profits, and to determine appellant’s, damages as.directed in this opinion.
. The findings reflect the difficulty of the trial judge in dealing with a record of evidence none of which he had heard from the lips of witnesses. Thus he appears to have overlooked the extensive testimony, uncontradieted, as to the many years of selling and advertising Dutch Boy paints, long prior to the appellees’ commencement of the business, and limited himself on this subject to a finding as follows: “The earliest national advertisement of the ‘Dutch Boy’ blue and white label products was in 1947, and the earliest reference to ‘Dutch Boy’ paints as distinguished from white lead, in defendant’s national advertising, occurred in 1950”. The impression given is that appellant did not begin to advertise its paints, and particularly its mixed ready to use paints, at least on the national scale, until 1947 or even 1950.
The record is quite otherwise. As appears from the deposition of appellant’s advertising manager, since 1913 appellant had been promoting the sale, on a national scale, of ready mixed paint bearing conspicuous labels with its trade mark. In the early 1930’s ready mixed paints called “Colors in Oil” were sold throughout the country under the conspicuous Dutch Boy label. Its 1937 trade mark registration was for numerous paints and paint products including “ready mixed paints for exterior use” and “ready mixed paints for interior use”. Beginning in 1918 what were known as “flatting paints” were sold under the Dutch Boy trade mark; and in the years between 1930 and 1940 similar Dutch Boy labels were applied to white lead paint, lead mixing oil, gloss enamels, varnish, quick drying enamel, enamel undercoat, semi-gloss, flat wall paint, wall primer, one coat flat-wall base and liquid dryer. The record includes numerous photographs of samples of appellant’s paint containers bearing the Dutch Boy label as distributed nation-wide in the years prior to 1940. Some of these were on products such as linseed oil and flatting oil, apparently for u-se of professional painters in mixing paint, but many of them are of mixed ready for use paints designed for sale to the consumers such as “Dutch Boy Outside White”, “Dutch Boy Satin Egg-Shell”, “Dutch Boy Interior White”.
Since 1938 appellant produced a full line of more than 30 types of ready mixed paints, each in a variety of colors, and all particularly designed for consumers’ use. All were displayed bearing this label among the stocks of independent dealers nation-wide as well as in the company’s own retail stores. These products were pushed with particular vigor in the area west of the Rocky Mountains. About 1930 appellant took over a concern manufacturing a full line of paints known as Bass-Heuter of San Francisco, and thereafter put out the full line of paint products of that concern using the Dutch Boy label thereon with a smaller insert marked “formerly Bass-Heuter”.
During the period following 1914 appellant advertised its trade mark products by distributing for use of painters millions of “wet-paint” signs bearing the Dutch Boy trade mark. From 1928 on it advertised its Dutch Boy products in approximately 200 newspapers throughout the country of which 40 or 50 were on the Pacific Coast. Displayed in the record are exhibits of circulars advertising Dutch Boy painters’ products which were distributed to dealers throughout the country in quantities aggregating hundreds of thousands. During this period the Dutch Boy trade mark was advertised in national magazines such as the Saturday Evening Post and Colliers, and in the farm journals.
The independent dealers in Dutch Boy paint were furnished fluorescent and Neon signs. At least 30,000 of such signs have been distributed since 1915, about 15% of which were installed at the stores selling the products on the Pacific Coast. Mammoth Neon signs bearing the trademark were located for outdoor advertising at places of maximum automobile traffic in New York, Los Angeles, Buffalo, Philadelphia, St. Louis, Chicago, Pittsburg, Cleveland and Cincinnati.
The case was tried in 1950 and the appellant’s advertising manager in testifying produced color advertisements currently appearing that year in national magazines bearing the phrase “Dutch Boy Paints”. The unfortunate reference in the quoted finding to the year 1950 is based upon the testimony of appellant’s advertising manager that “that particular phrase” first appeared in those 1950 advertisements. The result of this wholly unwarranted finding is that it gives an erroneous impression that appellant had only “come lately” with its trade mark into the mixed paint field.
. The district court’s findings erroneously recite that this Dutch Paint Co. had been producing “Dutch Paint” since 1941. There is no evidence upon the subject other than that “Dutch Paint Co.” was listed in the telephone hook from 1941 on. When it began producing, or when it made its “Dutch Paint” labels, does not appear.
. Although the record discloses no attack on the registration of appellant’s trade mark, the trial court failed to make any finding thereon, or even to note the fact of registration in the findings.
. See comment on Subdivision (a) of § 720 Restatement of Law of Torts, as follows:
“Arbitrary or fanciful use. The reasons for the rule that geographical names cannot be trade-marks do not weigh heavily when the geographical name has obviously only an arbitrary or fanciful significance in connection with the goods upon which it is used. Thus Gibraltar may be a trade-mark for automobiles since there is no likelihood that such use of the name would lead purchasers to suppose that there is any particular relation between the automobiles and the geographical locations known by that name, or any likelihood that it would seriously interfere with the freedom of merchants at Gibraltar to use that name. Again, Ethiopian may be a proper trademark for ladies’ stockings; for, while -suggestive of a certain color and sheen, it is only fancifully so and there is no likelihood that other merchants may have occasion properly to use the name Ethiopia on stockings since there is no factor of importance associating stockings with Ethiopia. Such is also the case of Pacific for bread or Arctic for refrigerators.”
. The words quoted are taken from Restatement of Torts, § 720(a).
. It was alleged in the counterclaim and admitted in the response that a valid registration of the mark “Dutch Boy”, obtained under the Act of February 20, 1905, is entitled to the benefits and remedies provided under the Lanham TradeMark Act of July 5, 1946, 60 Stat. 427, 15 U.S.C.A. § 1051 et seq., by virtue of § 46(b) of that Act, 15 U.S.C.A. § 1051 note. The section mentioned provides that “registrations now existing under * * * the Act of February 20, 1905 shall continue in full force and effect for the unexpired terms thereof * * *. Such registrations and the renewals thereof shall be subject to and shall be entitled to the benefits of the provisions of this Act [with certain exceptions not here applicable].”
. The quoted words arfe from Restatement of Torts, § 717 (1) (a).
. See the discussion in Callman, Unfair Competition in Trade-Marks, 2d Ed., §§ 82.3 and 80.6.
. Apparently appellees have abandoned any effort to sustain this finding of no confusion, for speaking of the testimony of appellant’s witnesses on this point, appellees’ brief says that “it is apparent that the presence of the common word “Dutch” was the sole cause of their several mistakes.”
. To the same effect see comment “f” to § 729(b) Restatement of Torts: “But if he adopts his designation with the intent of deriving benefit from the reputation of the trade-mark or trade name, his intent may be sufficient to justify the inference that there is confusing similarity.” See also Safeway Stores v. Dunnell, 9 Cir., 172 F.2d 649, 656: “Dunnell, witb his eyes open, thus chose to seek ■ the benefit of Store’s vast expenditures for advertising on the chance that it might prove enjoinable.” Cf. Stork Restaurant v. Sahati, 9 Cir., 166 F.2d 348.
. This was the occasion previously mentioned on which, according to the testimony of both appellees, appellant’s representative asked them “Have you ever given any thought to abandoning the use of the word ‘Dutch’?” It was appellant’s version of this conversation that appellees indicated an intention ultimately to drop the Dutch Paint brand and to go into a line of marine paints. Disregarding appellant’s version, it is plain that the parties then discussed the matter of appellees’ giving up the use of the Dutch Paint name.
. Appellees learned of this letter only after the action was begun, and through discovery processes. It was not even admissible in evidence. Overlooking this, and the rule of the Aunt Jemima Mills case, the trial court appears to have attached considerable significance to it for its finding 33 reads: “Mr. C. F. Kaegebehn, Manager of defendant’s Patent Department, admitted that National Lead Company did not have ‘proprietary legal exclusive right to the word “Dutch” in connection with paint and paint products,’ the while suggesting that a ‘show of force’ by defendant be used in lieu of such right.” Actually, in the same letter, Kaegebehn was urging the company representative to which it was addressed to advise all persons using the phrase Dutch Paint that the company was prepared to enforce its legal rights “to the utmost”. The letter
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_indigent | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant's rights as an indigent were violated?" 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".
Cornelius BELL, Plaintiff-Appellant, v. E. T. GROAK, Chairman, Board of Appeals and Review, U. S. Civil Service Commission, J. A. Connor, Regional Director, Chicago Regional Office, U. S. Civil Service Commission, John Macy, Chairman, Civil Service Commission, Ludwig Andolsek and Robert Hampton, Commissioners, Civil Service Commission, Defendants-Appellees.
No. 15625.
United States Court of Appeals Seventh Circuit.
Dec. 8, 1966.
William Robinson Fishman, Arthur DeBofsky, Fishman & Fishman, Chicago, 111., for appellant.
Alan S. Rosenthal, Asst. Atty. Gen., Martin Jacobs, Attorney, Department of Justice, Washington, D. C., Edward V. Hanrahan, U. S. Atty., Chicago, 111., J. William Doolittle, Acting Asst. Atty. Gen., for appellees.
Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge and SWYGERT, Circuit Judge.
DUFFY, Senior Circuit Judge.
Plaintiff seeks a declaratory judgment that the United States Civil Service Commission must accept his appeal and grant him a hearing on the merits of his “discharge” as a post office employee. The District Court entered an order dismissing the complaint on the ground that it lacked jurisdiction to grant the relief sought.
In September 1949, plaintiff was employed as a distribution clerk at the United States Post Office in Chicago. He worked there through August 2, 1962. On that date he signed papers resigning his position of employment.
On August 4 and December 9, 1962, and on January 17, 1963, plaintiff wrote to the United States Post Office Department seeking reinstatement to his position. These requests were denied in separate letters.
The first answer was from the acting postmaster stating — “Based upon your previous record, your request of August 4, 1962, for reinstatement will not be granted.” The second answer by the postmaster stated — “Based upon your previous record, your request for reinstatement, dated December 9, 1962, will not be granted.” The third answer was also by the postmaster and stated — “Your request for reinstatement, dated January 7, 1963, will not be granted, due to your previous unsatisfactory record.”
Plaintiff claims that on March 20, 1964, upon learning that the United States Civil Service Commission had authority over his resignation, he appealed to the Civil Service Commission, Chicago Regional office.
In his appeal, plaintiff stated he was questioned by two postal inspectors on August 2, 1962, and was advised that he had only two choices; either resign, or the inspectors would bring proceedings against him. Plaintiff charged he was not given any opportunity to consult with others as to the course he should take.
On March 23, 1964, the Regional Director of the Chicago Region of the Civil Service Commission answered, requesting additional information, including an inquiry as to why an earlier appeal had not been filed. Plaintiff replied setting forth events which he claimed occurred in connection with his resignation.
By letter dated April 10, 1964, defendant Connor, the Regional Director of the United States Civil Service Commission, informed the plaintiff that the normal time limit for acceptance of appeals by the Commission expires at the end of ten days from the effective date of the action appealed. The Commissioner stated this time limit could be extended by the Commission when it is established that circumstances beyond the control of the employee prevent him from filing an appeal within the ten-day period. The Regional Director then stated that plaintiff’s appeal, taken nineteen months after the date of the action being appealed, was not considered to have been filed within a reasonable time. He also stated — “Although you allege you were extremely busy working and training for a new career, this is not a sufficient reason for your delay in filing an appeal to the Commission.” The letter further stated that an appeal could be taken from the action of the Regional Director to the Board of Appeals and Review.
On April 13, 1964, the plaintiff appealed the adverse decision to the Board of Appeals and Review of the Civil Service Commission. By letter dated May 6, 1964, defendant Groak, Chairman of the Board of Appeals and Review, denied plaintiff’s appeal.
Although plaintiff seeks a declaratory judgment, the relief prayed for is in the nature of a writ of mandamus. Plaintiff asks this Court to decree that the United States Civil Service Commission must accept an appeal from plaintiff in this cause.
Before the District Court, plaintiff contended the Court had jurisdiction under the Tucker Act, 28 U.S.C. § 1346 (a) (2). Apparently, this claim has been abandoned, as no mention thereof is made in the amended complaint. In any event, that claim could not be sustained. Wells v. United States, 9 Cir., 280 F.2d 275, 277.
In the District Court, after the Government had objected that the individual members of the Civil Service Commission must be parties to the suit, the complaint was amended to name the Commissioners as party-defendants. However, no attempt was made to obtain service on any one of them.
The Supreme Court has considered this question in Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. The Court said on page 515, 72 S.Ct. page 412: “Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.”
The Blackmar case also held that an action against, the Commissioners could be brought only in the District of Columbia. Congress has since extended the venue provisions so that suit may be brought in other districts. 28 U.S.C. § 1391(e). This section also provides for service “ * * * by certified mail beyond the territorial limits of the district in which the action is brought.” Thus, it is clear that the requirement of service upon the individual Commissioners is still essential, and that the amendment of the complaint to name them as defendants was not sufficient to confer jurisdiction. As was said by this Court in Rabiolo v. Weinstein, 7 Cir., 357 F.2d 167, 168, “ * * * the presence of venue does not dispense with the necessity for service in order to acquire personal jurisdiction.”
As a general proposition, in cases where there is an issue as to the voluntariness of the resignation of a government employee, we are of the view that the Civil Service Commission should hold a hearing unless such a hearing is barred by laches. See Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533, 534-535. However, we do not reach that question in this case.
We are here confronted with the fact that the members of the United States Civil Service Commission were not served with process. Under the Blackmar case, we must hold that the District Court did not have any jurisdiction to order the United States Civil Service Commission to do anything. It follows that the District Court was correct in dismissing the amended complaint for want of jurisdiction.
Affirmed.
Question: Did the court rule that the defendant's rights as an indigent were violated?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_attyfee | 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 court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Joe Vernon SEARS, an individual, in person, and for all other persons similarly situated, Plaintiff-Appellee, Albert L. Bennett, C.J. Skelton, Archie N. Jones, Forest D. Tollett, John W. Landrum, Lawson C. Spencer, Thomas H. White, Earlie Nash, Aubrey A. Robinson, Edward Rawlins, John W. Cole, Charles Majors, Jr., Jesse J. Smith, Paul H. Stewart, Jimmy E. Brown, Carl E. Chester, Ray E. Landrum, Raymond Wiley, Eglieelgie Crow and Ellis Johnson, Criscel Kemp, A.M. Bennett, A.L. Woolfolk, T.C. Luckey and W.W. Seymour, the Brotherhood of Sleeping Car Porters, Intervenors-Plaintiffs-Appellees, Mildred Collins, Executrix of the Estate of James Collins, Jr., Deceased, Plaintiff, Terry G. Paup, individually and on his own behalf, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendants-Appellees, United Transportation Union, successor to Brotherhood of Railway Trainmen, a labor organization, Defendant.
No. 85-1982.
United States Court of Appeals, Tenth Circuit.
Dec. 18, 1985.
Donald W. Bostwick of Adams, Jones, Robinson and Malone, Wichita, Kan., for appellant.
Harold V. Matney, Kansas City, Kan., and Lee H. Woodard of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan., and Willis L. Toney and Sammie Edwards, Kansas City, Mo., for intervenors-plaintiffs-appellees.
Before BARRETT and LOGAN, Circuit Judges, and BALDOCK, District Judge.
The Honorable Bobby R. Baldock, United States District Judge for the District of New Mexico, sitting by designation.
BARRETT, Circuit Judge.
The sole issue presented by this appeal is whether the district court erred, based on the facts in this record, in applying the en banc opinion of this court in Cooper v. Singer, 719 F.2d 1496 (10th Cir.1983) retrospectively so as to abrogate contractual fee agreements entered into between appellant Terry G. Paup, the attorney (hereinafter referred to as Paup) and twenty-two (22) clients in 1972 prior to initiation of litigation which ultimately resulted in a class action recovery by some 73 class members. A recitation of the factual and litigative background should place the issue presented in focus.
Background
Paup entered into individual written attorney/client fee agreements with twenty-two (22) members of the later certified class. The agreements provided that Paup’s contingent fee would be one-third (33V3%) of all monetary recovery inclusive of back pay and attorney fee awards if the case should be resolved without appeal and forty percent (40%) of the total recovery obtained if appeal should be taken and the clients prevail.
Paup filed the initial suits in 1972 on behalf of Sears and Collins. These cases were consolidated and the district court certified them as a class action in August of 1975. Paup was lead counsel for the class. In 1982, following two appeals to this court and two denials of writs of cer-tiorari to the United States Supreme Court, a judgment in favor of the plaintiff class of some $8.2 million became final. Of this sum, about $4.1 million was awarded to the 22 clients with whom Paup had contingent fee agreements.
During the pendency of the second appeal in this case, this court handed down our en banc opinion in Cooper v. Singer, supra. In order to clarify the fee entitlement, Paup filed a motion on February 4, 1985, thereafter supplemented, requesting that the district court direct payment of the judgment in accord with the 22 contingent fee contracts and that Cooper v. Singer, supra, be ruled not to apply retrospectively. Following a hearing, the district court filed its Memorandum and Order on March 12, 1985, denying Paup’s motion and in pertinent part stated:
The amount of the fee awarded to Paup in 1982 [class action award] was less than the amount [by some $1.1 million] Paup would have received ... pursuant to the terms of his attorney/client fee agreement_ [T]here is a disagreement [between the parties] as to whether the rules announced in Cooper should be applied to this case. Simply stated, the Court in Cooper held “that if the ... fee award, calculated as set forth in Hensley v. Eckerhart [461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)], supra, and Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) (on fee award) is less than the amount owed to the attorney under the contingent fee agreement, then the lawyer will be expected to reduce his fee to the amount awarded by the courts.... On the other hand, if the fee award is greater than the amount owed to the attorney under the contingent fee agreement, then the attorney shall be entitled to the full amount of the fee award.” Cooper, supra, at 1506-07.
Paup contends that the Cooper rule should only be applied prospectively, citing Chevron Oil Company v. Huson, 404 U.S. 97 [92 S.Ct. 349, 30 L.Ed.2d 296] (1971), for the proposition of “nonretro-active application of judicial decisions.” Plaintiffs refute this contention by arguing that Cooper should be applied in a retroactive manner because Paup has failed to demonstrate] the facts of this case fall into the three-part test established in Chevron Oil. On this basis, the plaintiffs argue that the “Cooper rule would require Paup to accept the Court’s earlier award of attorneys fees in full satisfaction of all fees owed to him” and thus would abrogate the “fee contracts that he has with numerous class members.”
In addition the 22 plaintiffs contend that Cooper is not a new policy but merely clarifies an existing policy of denying windfalls to attorneys who represent successful Civil Rights claimants.
We have studied the briefs of the parties and find and determine:
1. That Cooper is not a statement of new law. It is a reassertion of the rule that where the law permits the assessment of fees against a party in a case, that
a) the Court may determine the amount of the reasonableness of the fee to be allowed;
b) that unless such sum allowed is inadequate or unreasonable the parties are bound by such ruling; and
c) that by seeking such a reasonable fee allowance the parties have waived any claim for the allowance of fees other than the amount as determined by the Court to be reasonable.
The Court finds and determines that the above rule complies with the intent and spirit of the Civil Rights enforced in this action.
The Court further finds that the fees allowed in this case are fair and reasonable and are in full satisfaction of all fees which have been claimed for representation of the class in this action.
The Paup motion to direct payment of the additional fees in accordance with the attorney/client fee contracts is Denied.
(R., Vol. I, pp. 268-72.)
On February 25, 1985, prior to the district court’s Memorandum and Order, supra, the court conducted a hearing on Paup’s motion. Although the contingent fee clients of Paup did resist the payment of fees in excess of those awarded by the court for class representation, all parties at the February 25th hearing stipulated-agreed that Paup’s contingent fee contracts were reasonable both at the time they were entered into and at the time of the hearing measured by fees then charged by those engaged in the practice of law in Kansas and, further, that Paup’s clients entered into the contracts freely, willingly and knowingly. (R., Vol. Ill, pp. 14-16.) The sole basis of the contingent fee clients’ objection was that the contingent fee award was in excess of the court’s class action award. {Id., pp. 16-19.)
Opinion
There is no evidence in the record before us that the contingent fee contracts at issue were entered into other than by arms length, honest dealings. The contracts were, as represented to the trial court, entered into freely and knowingly; furthermore, the parties agreed that the contingent fees were reasonable under the prevailing rates of charges by those engaged in the practice of law in Kansas. Accordingly, we shall not, on appeal, consider for the first time contentions challenging the reasonableness of the contingent fees set forth in the contracts. Neu v. Grant, 548 F.2d 281, 287 (10th Cir.1977). Thus, the issue for our resolution is one of law.
In Cooper v. Singer, supra, we recognized, inter-alia, that: “The legislative history does not discuss the impact of an attorney-client fee arrangement on a section 1988 fee award,” id. at 1498; “Johnson [Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974)] thus suggests that the essential inquiry in setting fee awards is reasonableness, regardless of any attorney-client fee arrangements.” Id. at 1499. “Taken together, Johnson and the three cases applying the Johnson factors provide useful but limited guidance on the relationship of a contingent fee award to a section 1988 attorney’s fee award,” and “[t]hus, the Senate Report’s allusion to these cases does not give us a clear indication of congressional intent,” and “we are not surprised that the circuit courts have failed to obtain uniform results in determining the effect of a contingent fee agreement on an attorney’s fee award,” but “we believe that the Supreme Court’s decision in Hensley v. Eckerhart, [461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)], has substantially clarified the issue. In Hensley ... the Supreme Court held that a prevailing party’s section 1988 fee award must be calculated in relation to the degree of success obtained_ Reasonableness provides the benchmark [focusing on the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation] for calculating the award.” Id. at 1500.
“We are inclined to believe that Congress expected section 1988 fee awards to fulfill the client’s fee obligation to his attorney. The legislative history on this issue is sparse; nevertheless, it seems to imply that the fee award should fully define the attorney’s right to compensation.” Id. at 1504. “The issue then is not whether we can restrict a client’s fee obligation in light of the apparent congressional intent of section 1988; rather, the issue is whether we should.” Id. at 1505.
Based upon the above quotations from our Cooper en banc decision, we must respectfully disagree with the district court’s finding that Cooper is not a statement of new law. The en banc opinion consistently pointed to the lack of specific, articulate Congressional guidance in the realm of legislative history, the conflicts between the circuits, and an acknowledgment that this court “should” resolve the issue whether a client’s fee obligation should be restricted to less than that reflected by the contingent fee agreement. Cooper v. Singer was a statement of new law in this circuit. It announced a rule of first impression which was not foreseeable.
Assuming that Cooper v. Singer would require the reduction of the award to Paup from the agreed-to contingent fee percentages contained in the 22 contracts with his clients to the fees determined to be reasonable and allowable in the class action as found by the district court, it can only be so if held to apply retrospectively, as determined by the district court.
Applying the guidelines of Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), we hold that Cooper v. Singer does not apply retrospectively.
Chevron employed a three-prong analysis in the determination whether a judicial decision should be applied retrospectively or prospectively. The Court said:
In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed [citation omitted]. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [Citation omitted.] Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ [Citation omitted.]
404 U.S. at pp. 106-07, 92 S.Ct. at 355.
In relation to the first prong, that Cooper v. Singer did indeed announce a new rule of law deciding an issue of first impression which was not clearly foreshadowed. We are not persuaded by the argument that because the courts have always had the power to supervise contingent fee agreements and to determine their reasonableness under the canons of ethics, Cooper v. Singer does not establish a new rule of law. Our research discloses that Cooper v. Singer seems to be the only opinion holding that a fee shifting award entered by the district court under 42 U.S.C. § 2000e-5(k) constitutes the only “reasonable” fee allowable to an attorney who has contracted with his client under a contingent fee agreement. In Dunn v. H.K. Porter, 602 F.2d 1105 (3rd Cir.1979), the court, while recognizing that when a contingent fee contract is to be satisfied from a settlement fund approved by the trial court pursuant to Rule 23(a), Fed.R.Civ.P., held that there is a compelling necessity to review the reasonableness of fee arrangements by examination of factors beyond the four corners of the contract in order to protect the interests of class members. Where, however, the contingent fee contract is found to meet the “reasonableness” test and was entered into between the attorney and his client (later a class action plaintiff) prior to the litigation, the court opined:
[T]he considerations stressed above argue in favor of deference to the parties’ contractual arrangement. The strong judicial reluctance to enforce the terms of a judicially fashioned bargain upon the parties now presses in favor of honoring the express terms of the fee agreement. The equities are also altered. If the client has entered the contract freely and advisedly, his claim of unfairness is reduced in force. The risk of unfairness to the attorney, in contrast, is sharply increased. For it cannot be said that the attorney is receiving more than he bargained for at the outset of litigation.... We therefore believe that the courts should be loathe to intrude into a contractual relationship between an attorney and client, and that a comparison between the contractual fee and the Lindy (class action) fee, whose method of calculation is designed to meet very different needs, is an inappropriate ground for invalidation of a contingent fee arrangement. Indeed, to allow such a comparison to be the sole basis for voiding an otherwise legitimate contract would require invalidating contingent fee contracts as per se unreasonable whenever damage awards reach large amounts. This, we believe, would be inconsistent with the Canons of Ethics and relevant case law.
602 F.2d at pp. 1111-12.
Other circuit court opinions have held contra to Cooper. Thus, it cannot be said other than that Cooper announced a new rule of law deciding an issue of first impression. In Hamner v. Rios, 769 F.2d 1404 (9th Cir.1985), the court rejected our Cooper rule which limited a § 1988 award to the statutory fee, relying on Pharr v. Housing Authority, 704 F.2d 1216 (11th Cir.1983) which held that when a prevailing party and his attorney have fairly contracted to reach a contingent fee, the agreement should be enforced if reasonable. The Hamner court observed, inter-alia: “Contingent fee agreements enable plaintiffs with meritorious claims but limited finances to obtain counsel, and they are set to account for the risk of nonrecovery. If attorneys begin to view statutory fees in civil rights cases as inadequate, use of the statutory award as a ceiling on fees could lead to a reluctance to represent civil rights plaintiffs, thus frustrating the intent of Congress.” Hamner, 769 F.2d at 1409. In Sullivan v. Crown Paper Bd. Co., Inc., 719 F.2d 667 (3rd Cir.1983) the court held that a contingent fee agreement should be enforced even if greater than the § 1988 statutory fee, and plaintiff would be directed to pay counsel the difference between the statutory award and the contingent fee. Hamner and Sullivan specifically rejected our Cooper rule.
We agree with Paup’s argument that our Cooper opinion represents “a statement of future operating procedure within this circuit [rather] than an ‘across-the-board’ decision intended to bar the enforcement of contingent fee agreements entered into over thirteen years ago.... [T]he opinion ... anticipated what might happen on remand and set down guidelines to be applied in order to avoid what the court believed to be a possible problem if the attorneys in that case [Cooper ] were to receive both the statutory fee award and the percentage of the award provided by their contract. This is a far cry from the result in this case if this Court refuses to apply Chevron and abrogates a contingent fee contract which applies to both the client’s statutory fee award and the back pay award equally.” (Brief of Appellant, pp. 18, 19.)
Next, we consider the second prong of Chevron, i.e., weighing the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. In Cooper, we recognized that impact of the rule announced would require careful attention by lawyers in the future:
We believe that by careful adherence to the professional codes and strict attention to congressional intent, lawyers can draft fee agreements that will eliminate the conflicts between section 1988 fee awards and client fee obligations. In light of our statements, we expect that lawyers practicing before the district courts of our circuit will do so and thereby avoid the need for courts to step in and rectify conflicts on an individual basis.
719 F.2d at 1506. Furthermore, we recognized that judges “[a]re not capable of prognosticating with certainty the actual impact of a fee award ceiling,” id. at 1503 (footnote omitted) on civil rights litigation. Uncertainty of impact weighs heavily against retrospective application of the new rule announced in Cooper.
Finally, we consider the third prong of Chevron, i.e., whether the retroactive application of the Cooper rule will impose injustice or hardship which should be avoided. Based on the record before us, we conclude that to apply the Cooper rule retroactively would work a substantial injustice on Paup. We repeat that the contingent fee contracts were freely, willingly and knowingly entered into prior to the litigation; further, that the parties agreed that the contingent fees set forth in the contracts were fair and reasonable when entered into and currently based upon fee rates of those members of the legal profession practicing in the State of Kansas. Thus, the contingent fee percentages involved in the Paup contracts with the 22 client class members do not result in a “windfall” for Paup as cautioned in Cooper. 719 F.2d at 1499. This is so because the fee arrangement contracts provide that any statutory award of attorney’s fee will be added to any other monetary award and the specified contingent fee percentages will apply to the total amount awarded. Thus, there is no “windfall.” Further, in terms of reliance, there can be no doubt that contingent fee contracts such as those involved here were commonly entered into and relied upon by attorneys and their clients. Therefore, the three-prong analysis of Chevron Oil Company v. Huson leads us to hold that Cooper v. Singer should be applied prospectively.
In summary, the undisputed facts are that: the contingent fee contracts were freely and knowingly entered into between Paup and the 22 clients prior to initiation of the litigation in 1972; Paup performed excellently as lead counsel in this extremely prolonged, complex litigation; the contingent fee awards were stipulated between all parties to be reasonable both at the date of the contracts and at the date of the hearings before the district court; and the degree of success, in terms of results achieved on behalf of the plaintiffs, was overwhelming. Considering these facts, our research reveals other decisions which support our analysis in this case.
In Sargeant v. Sharp, 579 F.2d 645 (1st Cir.1978), the court held that the existence of a contingent fee arrangement was not, in itself, a special circumstance rendering an award of attorney fees unjust, and unless the court finds such circumstances, it may not deny such fees. In Farmington Dowell Products Co. v. Forster Mfg. Co., 436 F.2d 699 (1st Cir.1970), the court held that the fact that a treble damage antitrust plaintiff freely acquiesced in a fee agreement was relevant, but not absolutely controlling, in determining whether the agreed upon attorney fee was permissible under the Code of Professional Responsibility. The court pointed out that factors to be considered were the complexity of problems, quality of work, the difficulties encountered, the length of the litigation, and the results obtained in determining, under the Code, “[w]hat amount it is ethical to receive, not at what share it is ethical to agree upon.” 436 F.2d at 701. And in Palmer v. Shultz, 594 F.Supp. 433 (D.D.C.1984), the court, citing to Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ruled that in making an award of attorney fees in civil rights litigation, the focus is upon the complexity of the litigation, the skill, experience and reputation of the attorney, and the prevailing community rate for the type of work done in arriving at the “market value” which the court referred to as “the touchstone of the fee inquiry.” Id. at 437.
Hensley v. Eckerhart, supra, emphasized that a § 1988 fee award should be particularly calculated upon the degree of success obtained and that excellent results warrant a full compensatory fee. See also, Vinyard v. King, 728 F.2d 428 (10th Cir.1984); Miller v. City of Mission, Kansas, 705 F.2d 368 (10th Cir.1983).
When the district court entered its attorneys’ fee award on December 1, 1982, neither the court nor counsel had the benefit and guidance of Hensley, supra, or Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983).
Mr. Paup pursued this complex, difficult litigation as lead counsel over a period of some thirteen years. He performed diligently and skillfully. He represented clients with limited finances. He assumed the risk of nonrecovery in prolonged, combative litigation. Under all of the circumstances, the contingent fee contracts were reasonable. The results achieved by Mr. Paup on behalf of his fee arrangement clients (and on behalf of the entire class) were overwhelmingly successful, resisted by competent counsel.
We REVERSE and REMAND with instruction that Paup be awarded attorney fees in accordance with his attorney-client contingent fee contracts.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
TURNER v. UNITED STATES.
Nos. 6288, 6294.
United States Court of Appeals Fourth Circuit.
Argued Oct. 5, 1951.
Decided Nov. 5, 1951.
C. Carter Lee, Rocky Mount, Va., for appellant.
R. Roy Rush, Asst. U. S. Atty., Roanoke, Va. (Howard C. Gilmer, Jr., U. S. Atty., Roanoke, Va., on the brief), for appellee.
Before SOPER, and DOBIE, Circuit Judges, and HUTCHESON, District Judge.
SOPER, Circuit Judge.
These appeals grow out of an indictment of Fred Edward Turner, in two counts, for unlawfully removing and unlawfully concealing one gallon of distilled spirits on which the tax had not been paid in violation of Section 2913 of the Internal Revenue Code, 26 U.S.C.A. § 2913; and also a libel filed against an automobile pick-up truck belonging to Turner which was seized by revenue officers of the United States under Section 3321 of the Internal Revenue Code, 26 U.S.C.A. § 3321, on the ground that it was used for the unlawful removal and concealment described in the indictment, with intent to defraud the United States of the tax. The cases were tried together before the District Judge, without a jury, and resulted in a verdict of not guilty of removal, under the first count, but guilty of concealment, under the second count of the indictment, and a sentence of six months’ imprisonment and a fine of $200; and also in a judgment of forfeiture of the automobile truck in the companion case. The sole question is whether these judgments were justified by the findings of fact which are not in dispute.
On February 4, 1951, in the daytime, two officers of the Alcohol Tax Unit, together with a state officer, were making investigations in Floyd County, Virginia. As they approached a country store they saw the automobile truck in question parked off the road near the store. One of the federal officers recognized Turner sitting at the wheel with three other young men in the cab of the truck. Knowing that Turner had a record for violation of the liquor laws, the officers turned their car around and came back and stopped beside the truck. One officer opened the door of the cab and saw a one-half gallon fruit jar full of illicit whisky on the floor at Turner’s feet. The other men were Harold Allen, a soldier on leave, and his two brothers. Three of the men, including Turner, had been drinking and were intoxicated. As the three Allen men descended from the cab the officers saw another half gallon jar of illicit whisky on the seat. Some of the whisky from this jar had been consumed. In the front compartment of the cab there was a pint bottle with less than an ounce of whisky in it. Harold Allen claimed the whisky as his own and stated that the officers could not do anything to him since he was in the army.
Earlier in the morning Harold Allen procured the two one-half gallon jars of whisky from an unknown source in the woods and brought them with him to the store, and finding no one in the truck placed the jars in the cab and went into the store where he met Turner and his two brothers who had come to the store with Turner in the truck. He invited the three of them to go to the truck and have a drink. They accepted the invitation and went to the truck. When Turner saw the liquor he said that they would have to get it out of the truck. However, he and the others continued to sit in the truck and drank the whisky for about one-half an hour until the officers arrived. During this period the truck was not moved.
Upon these facts the prosecution contends that the purpose of the participants in the incident was concealment which Turner aided and abetted, because the owner of the liquor placed it out of sight in the cab of the unattended truck when he emerged from the woods, knowing that the truck belonged to a friend, and because Turner, while expressing the desire that the whisky be removed from the truck, nevertheless countenanced the transaction by entering the vehicle and permitting it to be used by his friends while he and they enjoyed the whisky.
This argument in our opinion is not convincing. The circumstances under which the liquor was placed in the truck and was being used at the time of the seizure seem to us to be quite inconsistent with the idea of concealment. Had Turner and his friends been intent upon concealment, they would have hardly crowded together on the front seat of the cab and openly drunk from the half gallon jar in broad daylight in view of passers by on a public road. It is undisputed that the soldier on leave had procured the liquor to celebrate his homecoming; that he placed it in the truck without Turner’s knowledge, and that there was no intention on any one’s part to use the truck to transport the whisky. It is hardly reasonable to base an inference of an intent to conceal the liquor or a finding of actual concealment by Turner upon his acquiescence in the use of his truck for a drinking bout with three boon companions, especially as the celebration went on in public for a half hour, during which the actions of the men in drinking from the jar must have been plainly visible, and the jar was used so frequently that three of the men, including Turner, were quite drunk when they were arrested. Our conclusion is that in each case the judgment must be reversed and the case remanded for further proceedings consistent with this opinion. See Vandevander v. United States, 5 Cir., 172 F.2d 100.
Reversed and remanded.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_direct1 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider 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.
CHESAPEAKE & O. RY. CO. v. CLAYTON & LAMBERT MFG. CO.
No. 11169.
United States Court of Appeals Sixth Circuit.
April 13, 1951.
LeWright Browning, Ashland, Ky., Le-Wright Browning, of Ashland, Ky., on brief; Browning & Gray, Ashland, Ky., of counsel, for appellant.
W. H. Dysard, Ashland, Ky., W. H. Dysard, of Ashland, Ky., on brief; Dysard & Dysard, Ashland, Ky., of counsel, for appellee.
Before SIMONS, MARTIN and MILLER, Circuit Judges.
MILLER, Circuit Judge.
Appellant, The Chesapeake and Ohio Railway Company, brought this action in the State court to enforce contribution from the appellee, Clayton & Lambert Manufacturing' Company, as an alleged joint tort-feasor, under the provisions of Kentucky Revised Statutes, § 412.030. It was removed to the U. S. District Court, and, following a hearing, was dismissed by the District Judge.
Appellee, a manufacturing company in Detroit, Michigan, entered into certain contracts whereby it undertook the manufacture and production of ordnance material for the United States Navy. By agreement dated May 22, 1942, it leased from the American Rolling Mill 'Company, hereinafter referred to as Armco, a large steel plant west of Ashland, Kentucky, for use in the performance of these contracts. This plant was situated between the tracks and right of way of the appellant and the Ohio River, with the right of way paralleling the property on the south. The appellant operated three main line tracks, over which during the times involved there was an average movement of 120 trains during each 24-hour period. U.S.Route No. 23 was immediately south of and parallel with the tracks and right of way.
By the terms of the above agreement Armco obligated itself to provide a right of way between the leased premises and U. S. Highway No. 23, which access road would cross the appellant’s property and track at the location of an existing private crossing which Armco had the right to use. Armco requested the appellant to put the private crossing in condition for the contemplated use, but because of the proximity of the crossing to certain block signals on the tracks, with resulting traffic complications, it was suggested by the appellant that the proposed crossing be located at a point approximately 1,250 feet west of the existing crossing. The appellant agreed that if the suggested change was made it would construct at its own expense the proposed new .crossing together with a roadway from the original location to the proposed location. The suggested change was approved by Armco. The new private crossing and access road were completed on February 23, 1943. The appellee commenced operations in the leased, plant in May 1943.
The new crossing was used almost exclusively by officials and employees of the appellee and persons transacting business with it. By an understanding between appellee and the Blue Ribbon Lines, a common carrier by bus, motor buses were operated by the Bus Company between Ash-land and the plant, approximately 40 buses per day passing over the crossing. After the plant operation reached its capacity the number of persons employed there was between 1,500 and 2,500, approximately all of' whom passed over the crossing daily, on foot, or in private motor vehicles, or in buses. Following the beginning of the plant operations, complaints concerning the absence of protective devices at the crossing began to be made to the appellee, who relayed them to the appellant. At first the Bus Company declined to go over the crossing, but later upon demand of the Office of Defense Transportation, at the instance of the appellee, provided service over the crossing, access road, and up to the plant. The appellee ascertained that the Navy would pay for crossing protection, and after conferring with the appellant, an agreement was reached on October 5, 1943 under which such crossing protection would be furnished by appellant through its employees 24 hours per day, with appellee reimbursing appellant for the expense at a rate not to exceed $400 per month. This agreement was later reduced to formal contract form dated November 12, 1943, terminable by either party upon thirty days’ notice in writing by which the appellant licensed and permitted the use of its private roadway as a means of ingress and egress to and from the Armco property.
Watchman service was installed at the crossing on November 16, 1943. The watchmen were employees of the appellant and were selected, supervised and controlled by it. Their names were not given to the appellee. The appellee had no control over the watchmen as to how they would accomplish their work or otherwise. The monthly bills for the amount of wages paid by appellant were presented to and paid by the appellee. The bills contained a 10% supervision and accounting charge.
At 6:32 a. m. on January 10, 1945, a motor bus of the Blue Ribbon Lines, carrying at least 60 employees as passengers, and an engine and caboose, being operated by the appellant, collided at the crossing. Two of the passengers sustained injuries from which death subsequently resulted and other occupants sustained personal injuries of varying extent. Thereafter damage suits were filed in the State court against the appellant and the operator of the Blue Ribbon Lines. One suit went to trial and judgment. The suits and other claims for personal injuries were based upon alleged joint and concurring negligence of the watchman on duty at the crossing, of the employees in charge of the train, and of the driver of the bus. The suits and claims were settled by the appellant and the Blue Ribbon Lines, the appellants paying $42,-753.67 in doing so.
The stipulation states that the settlements by the appellant were made in good faith, in accordance with compromise agreements, and were reasonable in amount. Appellant had advised appellee at the time of the accident that in its opinion appellee would be liable for contribution in connection with any loss which appellant might sustain as a result of the accident. Demand for such contribution was later made, and following refusal of appellee to so contribute, appellant filed this action for $21,376.83, being 50% of the amount so expended by it.
At common law there was no right of action for contribution between joint tortfeasors, who were in pari delicto. This common law rule was changed by legislative act in Kentucky, formerly § 484(a) Kentucky Statutes, now carried as § 412.030 Kentucky Revised Statutes, reading — “Contribution among wrongdoers may be enforced where the wrong is a mere act of negligence and involves no moral turpitude.” Under the statute, if the amounts paid by a wrongdoer are paid pursuant to compromises, made honestly and in good faith, a prima facie right to contribution is established, with the legal right in the other to show the non-existence of liability or the absence of a good faith, reasonable settlement. However, a joint tort-feasor can not enforce contribution of another against whom the person injured by the tort has no cause of action. Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086. In order for appellant to enforce contribution in the present case, it must show that the injured passengers had a cause of action against the appellee. Obviously, the appellee was not chargeable with the negligent operation of the bus or with the negligent operation of the engine and caboose, and any liability upon its part would have to arise out of a failure on its part to properly protect the crossing, which in turn would necessarily rest upon a duty to so protect the crossing. Unless such a duty is established, appellant’s case fails.
The District Judge, in dismissing the action, was of the opinion that the case turned solely upon the one proposition, whether appellee owed its employees a duty to see them safely across the railroad tracks in going to and coming from their employment, which duty would have to be based upon the law >of master and servant, which requires the master to furnish the servant a reasonably safe place to work. He ruled that the “safe place to work” doctrine did not extend to the employees riding to work in a public bus on a roadway and railway crossing at such a distance from the employer’s plant, and that appellee was accordingly not a joint tort-feasor from whom contribution could be enforced. On this appeal, appellant concedes that the “safe place to work” rule has no application, but contends that the District Court based its ruling upon a non-existent issue.
The case is argued to us on a different and independent theory. Appellant contends that the appellee, having provided this crossing as the sole means of ingress and egress to and from its plant, thus inviting its employees and other business visitors to use such crossing, was obligated to exercise ordinary care for the safety of such invitees, including their safety while using the crossing; that this duty was a nondelegable duty; and that the appellee was responsible for the negligence of the agency chosen by it to perform this duty. It concedes that the appellant was liable for the negligent act of the watchman, who was its employee, but contends that the responsibility for the conduct of the watchmen was a joint responsibility, thus giving rise to the liability of both appellant and appellee as joint tort-feasors.
Appellant cites a number of Kentucky decisions and other authorities holding that the owner or occupant of property owes to an invitee or business visitor the duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. The rule is well settled, but as so stated and as usually applied it refers to hazards existing on the property itself, such as slippery floors, or defective stairs, or escaping gas, encountered by the invitee after he has entered onto the property. The rule in its general application does not cover hazards encountered by the invitee on the street or highway, even though adjacent thereto, in attempting to reach the. property and before entrance thereon. Gates v. Kuchle, 281 Ky. 13, 134 S.W.2d 1002; Gabriel v. Bank of Italy, 204 Cal. 244, 267 P. 544, 58 A.L.R. 1039. The cases cited are not applicable to the precise question now before us.
Appellant submits several theories upon which such joint liability exists. It contends that the crossing was a private crossing, imposing no duty upon the railroad company, under the general rule in Kentucky, to install or maintain any crossing safeguards, such as gates, lights, bells or watchmen, Stull’s Adm’x v. Kentucky Traction & T. Co., 172 Ky. 650, 189 S.W. 721; Chesapeake & O. Ry. Co. v. Hunter’s Adm’r, 170 Ky. 4, 185 S.W. 140; Dietz’ Adm’x v. Cincinnati N. O. & T. P. Ry. Co., 296 Ky. 279, 176 S.W.2d 699, and that the duty to guard such a private crossing, which was the sole means of ingress and egress to the plant, was upon the appellee; that the appellee as the dominant owner and user of the easement over a private crossing had the duty to maintain it in a safe traveling condition; Spalding v. Louisville & N. R. Co., 281 Ky. 357, 136 S.W.2d 1; that the arrangement under which watchman service was provided was a joint undertaking of both appellant and appellee; Blair v. Durham, 6 Cir., 134 F.2d 729; Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90, 295 N.W. 571, 138 A.L.R. 955 (with opinion by Judge McAllister, now a member of this Court); that the duty to protect the crossing was a non-delegable duty which was not discharged by the employment of some one else to perform it; Lauer v. Palms, 129 Mich. 671, 89 N.W. 694, 58 L.R.A. 67; Restatement, Torts. Sec. 877; that the watchman at the time of the accident was acting as the agent of the appellee, although he was employed by and paid by the appellant; Louisville, H. & St. L. Ry. Co. v. Illinois Central R. Co., 93 S. W. 4, 29 Ky.L.Rep. 265; Schulte v. Louisville & N. R. Co., 128 Ky. 627, 108 S.W. 941. There may or may not be merit in some of these contentions, when applied to the exact facts of this case, but under our view of the case they become immaterial.
We are of the opinion that liability on the part of the appellee to the injured 'parties, even if established, would not entitle appellant to the contribution from appellee which it now seeks. The Kentucky statute changed the general common law rule which barred contribution between joint tort-feasors who were in pari delicto, but it made no change in the exception to that general rule which allowed the right of indemnity where the person seeking it and the person from whom it was sought were not in pari delicto, as where the party who was compelled to pay the damages was less culpable than the other wrongdoer, although both were equally liable to the person injured. Under that exception to the general rule, the party who was the active wrongdoer or primarily negligent could be compelled to make good to the one secondarily liable any loss he sustained. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165; Middlesboro Home Telephone Co. v. Louisville & N. R. Co., 214 Ky. 822, 284 S.W. 104; Washington Gas Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712. In the present case, the contract between the appellant and the appellee imposed upon the appellant the primary duty of safeguarding the crossing. The ap- . pellee had no participation in the selection, employment, or supervision of the watchmen employed by the appellant and assigned by it to the performance of this duty. The accident was not the result of any act on the part of appellee. As between the appellant-and appellee, the appellant was the active wrongdoer; the appellee being con- . structively liable, if at all, by operation of a rule of law. If appellee had been required to pay a judgment it would have a • right of indemnity for the full amount so paid against the appellant. Such a right necessarily negatives a right of contribution against it.
The judgment of the district Court 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_constit | 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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent.
No. 11399.
United States Court of Appeals Third Circuit.
Argued Oct. 8, 1954.
Decided Nov. 19, 1954.
Isadore Glauberman, Jersey City, N. J., for appellant.
Charles V. Webb, Jr., Newark, N. J., C. William Caruso, Newark, N. J., on the brief, for respondent.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Petitioner and Joseph Grillo had been convicted in a New Jersey state court of first degree murder arising out of an armed robbery. Since there had been no recommendation for mercy by the jury, under the state law the convictions carried mandatory death sentences. A third participant had also been found guilty of murder but as to him a jury recommendation of mercy had resulted in a life sentence.
On the particular phase of the case with which we are here- concerned there had been an application to the state court for a new trial which had been denied. The state supreme court affirmed'that, decision on June 28, 1954. Some time thereafter execution of appellant and Grillo was set for the week of August 15, 1954. During the interval the attorneys who had represented them withdrew from such representation. Appellant’s present attprneys came into the matter August 12,1954, a Thursday. On the next day on behalf of appellant, they made three separate applications to Justices Black, Jackson and Clark for a stay of execution pending application for .certiorari. They .were advised Saturday of the refusal, bf the ápplications. Sunday intervened and. the following day, Monday, they appeared before the district judge on duty at Newark seeking an order directing appellee to show cause why a writ of habeas corpus should not be granted. At that time while a definite day and time for the executions had not as yet been announced counsel expected that they might occur the next day, Tuesday. Under the circumstances the coming into the federal court was entirely proper. To wait until steps could be taken to exhaust the remedy of a formal petition for certiorari would have rendered the federal habeas corpus “process ineffective to protect the rights of the prisoner” as is stated in the alternative clause of the governing statute, 28 U.S.C. § 2254. Appellant and Grillo would have both been dead long since. See. Thomas v. Teets, 9 Cir., 1953, 205 F.2d 236, certiorari denied 346 U.S. 910, 74 S.Ct. 240; United States ex rel. Jackson v. Ruthazer, 2 Cir., 1950, 181 F.2d 588, certiorari denied 339 U.S. 980, 70 S.Ct. 1027, 94 L.Ed. 1384.
There had been no prior application for habeas corpus to the district court on the grounds alleged in the petition. Those grounds were that a trial juror’s fraudulent concealment on voir dire of allegedly disqualifying facts and his untruthful answers with respect thereto indicated such bias and prejudice on his part that DeVita was deprived of a fair trial by an impartial jury contrary to the Fourteenth Amendment of the Federal Constitution. The facts so concealed or. falsified were stated to be that the juror had himself been a victim of a strikingly similar armed robbery within a'.year., of. the trial and that as a result he knew a number of detectives who it is strongly inferred were from the same specialized field of criminal investigation in the municipality which had been .the locale of both offenses.
While, ás will, be seen, examination of the'merits of petitioner’s allegations is not now indicated it should be noted that a primary defense trial objective for all three defendants had been to obtain a jury recommendation of life imprisonment.
As has been stated the petition was filed in the district court August 16, 1954 and application for the writ or a rule to show cause why it should not be issued was made to the sitting district judge that same day. After presentation by counsel the district judge declared a recess. That same afternoon he returned to the bench and read his written decision. In it he stated that the court conceived the Supreme Court opinion in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, “to be the leading case on the problem with which the court is presented now, * * He then said:
“In the Brown v. Allen case the Supreme Court said, ‘Application to district courts on grounds determined adversely to the applicant by the state court should result in a refusal of the writ without more if the court is satisfied by the record that the slate process has given fair consideration to the issues and the offered evidence and has resulted in a satisfactory conclusion.’ ” (Emphasis supplied.)
He further stated:
“Now, the only record which the Court has before it now is the opinion which Mr. Glauberman was good enough to give me, written by Justice Burling.” (Emphasis supplied.)
The court concluded from the above that:
“ * * * my primary consideration in this application, Mr. Glauberman and Mr. Alper, is to see whether state process has given fair consideration to the issues presented here, * * *.” (Emphasis supplied.)
Thereafter the district judge for four typewritten pages quoted from the state court opinion and, quite obviously convinced by that language, stated:
“So it is quite apparent that the court did give ample and full consideration to the question which you now raise here, and under Brown versus Allen it is clear what my duty is under the circumstances * * *
•*****•»
“Therefore, I shall have to deny the writ peremptorily, * * (Emphasis supplied.)
Further on in the opinion the district judge remarked that the state courts “have much more time to consider thp merits that you have raised before me than this court has. I realize the peremptory job that I have so I must dispose of it peremptorily and courageously as is my duty.” (Emphasis supplied.)
At the end of his opinion the judge said he would allow a certificate of probable cause and in his order dismissing the petition appears the following: “ * * -» probable cause for appeal is hereby certified.”
Both sides agree that the Brown v. Allen doctrine was controlling in the district court. We are in accord with that theory.
The underlying facts are simple. The district judge made no attempt to dispose of the petition as insufficient on its face or absent the “record”. See Mr. Justice Frankfurter’s separate opinion in Brown v. Allen, supra, 344 U.S. at page 502, 73 S.Ct. 443, and Mr. Justice Jackson’s concurrence, 344 U.S. at page 647, 73 S.Ct. 430. Cf. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830. Specifically he examined what he accepted as the state court record in the DeVita case or a substitute therefor but which unfortunately consisted solely of the opinion in that proceeding. In his opinion above referred to he makes it plain that he intended to and believed he had in fact considered the merits of the application. What he did actually was to examine the opinion and from that satisfy himself that the state court had given fair consideration to the issues raised by the petition as Brown v. Allen requires and that it had arrived at the satisfactory conclusion made necessary by the same decision. That the district judge regarded the petition as raising a substantial question or questions is further evidenced by his certification of the action as possessing probable cause for appeal. Appellee argues that this was motivated by the heart rather than the head. Though of no moment in the face of the solemn certification for appeal it is difficult to adopt such construction in the light of the judge's comment immediately prior to his allowance of the certificate in which he decried the cruelty of constant stays in capital cases where there had been convictions.
The state court opinion on which the district judge completely relied was not the “record” alluded to in Brown v. Allen, supra. Footnote 19, 344 U.S. at page 464, 73 S.Ct. at page 411, to that opinion makes this evident. The first sentence of that comprehensive exposition of just what the “record” means reads:
“When an application for habeas corpus by a state prisoner is filed in a federal district court after the exhaustion of state remedies, including a certiorari to this Court, it rests on a record that was made in the applicant’s effort to secure relief through the state from imprisonment, allegedly in violation of federal constitutional rights.”
The final sentence of the footnote states:
“If useful records of prior litigation are difficult to secure or unobtainable, the District Court may find it necessary or desirable to hold limited hearings to supply them where the allegations of the application for habeas corpus state adequate grounds for relief.”
And see Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 869-870, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003; United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C.W.D.Pa.1948, 81 F.Supp. 861, 864, 871, affirmed 3 Cir., 1949, 174 F.2d 480.
The state court opinion does refer to certain evidence and does draw certain factual and legal conclusions therefrom. But without ever seeing the transcript of the state trial it is not enough to take that opinion as the record and from it adjudge that “ * * * the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion.” Brown v. Allen, supra, 344 U.S. at page 463, 73 S.Ct. at page 410. Since the district judge conscientiously construed it his duty to examine the state court record he should have made sure that it was produced before him and, after studying the entire record, should have determined whether the state court had given fair consideration to the issues raised by the petition and had arrived at a satisfactory conclusion thereon. On appeal, with the original record before us, we would be in a position to pass upon the merits.
In the instant situation where the district judge thought it necessary to inquire into the merits of the application but apparently felt himself so circumscribed by the time element that he rendered his decision on the basis of what he had then before him of the state court proceedings, namely, the state court opinion alone, we think it sound law and good practice that this case be remanded to the district court for proper examination of the state court, record on which it is based.
In United States ex rel. McLeod v. Garfinkel, 202 F.2d 392 we reversed the district court’s denial of a writ for habeas corpus because the determination was founded on evidence not before the court. We remanded the cause for further proceedings. In the appeal at bar the finding of the district judge that the state court had given fair consideration to the particular issues raised by the petition and to the evidence connected with these issues and had reached a satisfactory conclusion was not founded on any original evidence at all for there was none before the court. In United States ex rel. Thompson v. Dye, 3 Cir., 208 F.2d 565, 566, after hearing the district judge declined to issue a writ. We reversed and remanded because he had made no finding as to which of the accounts he believed saying “the omitted finding goes to the very essence of the complaint of fundamental unfairness.”
It might be that even in the existent circumstances if the petition on its face were frivolous or patently without justification we could so declare it but we do not so find. Nor do we find any abuse of discretion in the district judge’s decision to investigate the merits of the petition. See Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392; Baker v. Ellis, 5 Cir., 1952, 194 F.2d 865.
Irrespective of the offenses for which they were convicted, DeVita and Grillo were not only entitled to a fair trial on their guilt or innocence but on the all important specific issue of a mercy recommendation by the jury which if given meant their lives would be spared. Since it is alleged that petitioner was tried by a jury that was not impartial on this issue and since the district judge decided without abuse of his discretion to investigate the merits of the application, it is the letter and the spirit of the Fourteenth Amendment that either the original state court record be itself carefully scrutinized or a hearing he held before any conclusion as to the alleged fundamental unfairness of the state court trial is reached. See United States ex rel. Trowbridge v. Pennsylvania, 3 Cir., 1953, 204 F.2d 689; United States ex rel. Darcy v. Handy, 3 Cir., 1953, 203 F.2d 407, certiorari denied, Maroney v. U. S. ex rel. Darcy, 346 U.S. 865, 74 S.Ct. 103; United States ex rel. Daverse v. Hohn, 3 Cir., 1952, 198 F.2d 934,. certiorari denied 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; Ex parte Jacobs, D.C.S.D.N.Y.1954, 123 F.Supp. 393.
The judgment of the district court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The stay of execution will be continued pending issuance of a new stay by the district court.
. N.J.S.A. 2A:113-4.
. State v. Grillo, 16 N.J. 103, 106 A.2d 294.
. See 28 U.S.C. § 2243.
. Appellee states that under the cireumstancés of the case the issues on this appeal are: “* * * was not the District.; Court justified in accepting the opinion of the New Jersey Supreme Court as the ‘record’ for its determination on whether the writ should issue, and did not the Court below properly deny the writ without plenary hearing?”
. The district judge may have mistakenly assumed that he was under a duty of disposing of the issue immediately. His authority to issue a stay both before and after final judgment is clear from 28 U.S.C. § 2251 which reads: “A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.” So instead of being forced to take “the only record which the court has' before it now”, i. e. the state court opinion, the district judge could have stayed the execution pending his disposition of the application. During the period of the stay he could then have seen to it that the true state court record was brought before him.
. The latter requirement was not specifically discussed by the district judge.
. See O’Brien v. Lindsay, 1 Cir., 1953, 202 F.2d 418, 421; cf. our opinion in this action on application for stay, 214 F.2d 823.
. In United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549, relied on by appellee, the trial and appellate state court records were before the district court.
. This is far from being a mere technicality. For example, the state supreme court opinion says, State v. Grillo, supra, 16 N.J. at pages 114-115, 106 A.2d at page 300,:
“Einally Grillo asserted on this appeal that Kuhnle had falsely denied that he knew ‘any of the State’s officers or personnel.’ This point finds no support in the record except insofar as stated in the newspaper article * * *.
“ * * * it is a fair inference that even if the juror had occasional city police protection, that he answered the question as any reasonable person would do when not versed in the law, namely that ‘State’s officers or personnel’ meant State of New Jersey officials or employees and not City of Newark police or County of Essex officials.” (Emphasis supplied.)
Without looking at the state record it would be impossible for the district judge to know whether this point did find any other support in the record and whether the state supreme court’s conclusion was “a fair inference.”
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_appel1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
SECRETARY PEN CO., Inc., et al. v. EVERLAST PEN CORP.
No. 142, Docket 21855.
United States Court of Appeals Second Circuit.
Argued Jan. 4, 1951.
Decided Jan. 29, 1951.
Rudolf Callmann, Greene, Pineles & Durr, New York City, for plaintiff s-appellants. Orville N. Greene, New York City, and Joseph Y. Houghton, Washington, D. C., of counsel.
Nichol M. Sandoe, New York City, for defendant-appellee.
Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The complaint alleges as a first cause of action that the plaintiff Wuestman is the inventor of an advertising pencil for which U. S. Letters Patent No. 2,264,194 were issued to him on November 25, 1941; that thereafter he granted an exclusive license to manufacture, use and sell his invention to the plaintiff Secretary Pen Company, and that the defendant Everlast Pen Corp. has infringed the patent by making and selling advertising pencils covered by Claims 5, 6 and 7 thereof. The complaint prays for the usual injunction and accounting. The defendant moved for a summary judgment in its favor under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A., dismissing the first cause of action on the ground that defendant’s pencils did not infringe the patent. It based this motion on a copy of the patent, the file wrapper and a stipulation agreeing that certain pencils were representative of those manufactured by defendant and alleged to infringe the claims.
The defense is non-infringement based on file wrapper estoppel. The defendant asserts that the patentee so limited his claims in the prosecution of his application in the Patent Office as not to cover the defendant’s pencils. The three claims involved are set forth in the margin. The judge dismissed all of them on the ground that the defendant’s pencils did not infringe because they involved no sliding contact between the movable advertising element and the stationary one.
In respect to Claim 5, the defendant says that the sleeve in his pencil is not “slidably related” to the fixed element in the center of the pencil because it is only guided, by the interior wall of the cylindrical chamber and does not touch the central element at any point. We do not agree. It is true that this claim, prior to its last amendment, required the movable element “to move by gravity between the ends of said chambered section * * * and relative to” the stationary element. This might have been accomplished without sliding on anything, since any movement of the movable element would be “relative to” the fixed element so long as it was within the same chamber. That this was the meaning of the words “relative to” as the claim stood prior to its last amendment is apparent from its history. Originally Wuestman had claimed only a transparent chamber filled with a transparent liquid and a “carrier means within said section interior adapted to move by gravity from end to end thereof through the liquid contained therein, and said carrier means bearing an advertising display * * * ” As to this formulation of the claim the Examiner had ruled: “rejected on Neal in view of Fitch. The element c of the latter constitutes a carrier means and its indicia is the full equivalent of an advertising display. There would be no invention in placing the label c of Fitch in the liquid container of Neal.” [The Neal patent disclosed a transparent sealed capsule enclosed in a pencil and filled with liquid. Fitch disclosed a transparent package serving as a means of displaying and preserving minute articles of merchandise contained therein; an identifying slip, labelled “c,” was “inclosed loosely with said article.”] Wuest-man then substituted a new claim which added the requirement of a stationary advertising element; the movable element was described as moving “relative” to the stationary one. This, too, was rejected, again on the references to Fitch and Neal, the Examiner explaining that it was merely “aggregative, there being no combination or coaction established between the movable and stationary advertising means.” In other words, the Examiner seemed to be saying: you have simply added a stationary advertising element to Fitch’s free-floating label and that is not an invention in and of itself. Upon that ruling the claim was again amended into its final form so as to describe the movable element as being “slidably related” to the fixed element. We do not see that this amounted to anything more than a disclaimer of the free-floating qualities of Fitch’s label, and cannot agree that the claim as amended, in the light of its history, so clearly requires the moving element to slide upon the fixed one as to justify granting summary judgment for defendant on the ground of file wrapper es-toppel. Qaim 5, as thus amended, is capable of only specifying a sleeve that is “slidably related to” and not one necessarily sliding on or along the fixed element. As it stands it might be met by a sleeve that slides either on the fixed element or on anything else within the tube as — in defendant’s structure — on the inner walls of the chamber.
It may be noted in further support of the plaintiffs’ construction of Qaim 5, that Qaim 7 expressly requires the movable element to be “guided by” the fixed element. This would indicate that Qaim 5 is not limited on its face to a sliding contact between the two elements but is broader, as the plaintiffs contend. “When * * * interpreting a series of claims, a limitation not present in one must not be implied, when the same limitation appears in later claims in the series.” See opinion of L. Hand, J., in Western States Mach. Co. v. S. S. Hepworth Co., 2 Cir., 147 F.2d 345, 350. We decide here only the effect of the bare language of the patent and file wrapper history. We do not, and cannot, decide the effect of any additional evidence which may be introduced at the trial.
Qaim 6 obviously is not infringed by the defendant’s pencils. It calls for a “means within said cJmmbered section to guide such endwise movement of said advertising element.” The italicized words were added after the Examiner had rejected the claim because “the wall of the Neal container would guide the movement of any object within the container.” The walls are not objects “within” the container and the result of this amendment was, in effect, a disclaimer as to defendant’s pencils. I. T. S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 444, 45 S.Ct. 136, 71 L.Ed. 335. It is not even contended that Claim 7 has been infringed, nor, in the light of its language, could it be.
For the foregoing reasons, the decree of the court below dismissing Claims 5, 6 and 7 is affirmed as to the dismissal of Claims 6 and 7, but reversed and remanded for trial as to Claim 5; no costs.
. 5. In a device of the kind described, a transparent chambered section having closed ends, a transparent liquid filling said chambered section, a stationary advertising element and a movable advertising element within said chambered section, said movable advertising element being slidably related to said stationary advertising element and adapted to move by gravity between the ends of said chambered section through the liquid contained therein and relative to said stationary advertising element.
6. In a device of the kind described, a transparent chambered section having closed ends, a transparent liquid filling said chambered section, an advertising element submerged in said liquid but adapted to move under gravity endwise there-through between the ends of said chambered section, and means within said chambered section to guide such endwise movement of said advertising element.
7. In a device of the kind described, a transparent chambered section having closed ends, a transparent liquid filling said section interior, a fixed guide means extending axially of said section interior,, a movable advertising means guided by said guide means and adapted to move by gravity between the ends of said section interior through the liquid contained therein, said guide means bearing advertising display, said movable advertising means and said advertising display of said guide means being visible through said liquid and the transparent walls of said sec-. tion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_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. James Edward EDSON, Defendant-Appellant.
No. 73-1323.
United States Court of Appeals, First Circuit.
Argued Oct. 16, 1973.
Decided Oct. 23, 1973.
Joseph F. Flynn, Rockland, Mass., for defendant-appellant.
Henry H. Hammond, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before ALDRICH and CAMPBELL, Circuit Judges.
ALDRICH, Senior Circuit Judge.
Defendant appeals from an order of the district court setting bail pending trial. The facts are somewhat unusual. On March 1, 1972 defendant was convicted upon a plea of guilty of possessing heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Following indictment, defendant had been incarcerated because of his inability to supply bail set by the court in the amount of $25,000 with surety. On his plea he was sentenced to eight years imprisonment with the additional parole term provided by 21 U.S.C. § 841(b)(1)(A), with credit for time served. On September 24, 1973 the judgment of conviction was vacated because the sentencing judge had failed to comply with F.R.Crim.P. II. ******Defendant was then brought before a magistrate for a determination of bail.
At this time defendant had served twenty-five months, and, taking into account good time credits, would have been eligible for parole in seven months. We are informed that because of his good prison record he had been granted three “furloughs” and would have been allowed to attend classes at a local university which had accepted him for the current semester.
The magistrate recommended that bail be set again at $25,000 with surety. This recommendation was “adopted and approved” the same day by the district court without evidentiary or other hearing. There is no contradiction of defendant’s claim that he is unable to comply. Defendant is twenty-four years old and unemployed and has no demonstrated resources, nor have his parents. The undisputed effect of this order is that defendant not only remains incarcerated, but, ironically, unlike the situation when he stood convicted, he is no longer entitled to furloughs or to attend school.
Passing the diminished strength that we are disposed to accord to district court findings that merely adopt, without even opportunity for a hearing, the report of a magistrate, the defendant has a considerable burden on appeal. However, in view of the substantial errors contained in the magistrate’s memorandum, we proposed under the special circumstances of this case to exercise the authority vested in us by virtue of the Bail Reform Act, 18 U.S.C. § 3147(b), and order our own bail conditions.
The magistrate’s finding commences, after reciting the procedural history, with a statement that he proposed to disregard the fact that two jail officers had supplied letters expressing their opinion that defendant was sufficiently rehabilitated to resume the responsibilities of living in a free society. He considered the previous sentence to have been awarded not for rehabilitation, but for “punishment . . . not yet complete.” Defendant argues from this last that the magistrate was disregarding the presumption of innocence which was fully restored by the setting aside of his conviction. We agree, except that so far as bail is concerned the presumption is not that, but, as to an untried defendant, a “presumption in favor of releasability.” United States v. Leathers, 1969, 134 U.S.App.D.C. 38, 412 F.2d 169, 171. We add that, rather than being “of no consequence,” the opinions of the jail officials had a direct bearing upon defendant’s “character and mental condition,” as to which the magistrate was specifically directed to inquire. 18 U.S.C. § 3146(b).
Next, the magistrate drew the conclusion that following another trial the defendant would receive “no less a sentence.” He omitted, however, any consideration of the fact that against such a sentence defendant would receive substantial credit for time already served, making the situation quite different from what it was when bail was originally set.
The magistrate then pointed to the fact that the defendant had received two sentences in the state court for similar offenses, but which had been suspended, with probation, very possibly on the ground that defendant was already serving a federal sentence. He opined that to release defendant under these circumstances would be “a slap in the face of the state court.” We have no reason to suppose that the state court would be affronted or would expect the magistrate to do other than his duty. In any event, this court holds no possible obligation to the state court at the expense of defendant’s federal rights. It should be unthinkable that a magistrate would disregard the clear command of Congress because of its indirect effect upon the feelings of judges of another court.
The seriousness of the crime of distributing narcotics may have distracted the magistrate’s attention from the priorities established by Congress by the Bail Reform Act. Until a defendant has been convicted, the nature of the offense, as well as the evidence of guilt, is to be considered only in terms of the likelihood of his making himself unavailable for trial. Determination of what is needed “reasonably [to] assure” defendant’s appearance, not considerations of state comity, controls the setting of bail under the Bail Reform Act.
This defendant, as a practical matter, may well face less than one year in jail. If he were to default, even on personal recognizance, he faces an additional federal sentence. What might seem even more pressing, while conviction of the original offense would not be a violation of his state probation, defaulting even federal bail presumably would be such. Hence defendant would face, in addition, a reactivation of his state sentences. As against this, no affirmative reason has been offered why defendant is likely to flee the state where all his past and present connections appear to be.
Under these circumstances we cannot feel that the government, quite apart from the commendation defendant has earned during his present incarceration, has met the burden now imposed on it by the Bail Reform Act of showing that defendant would violate any bail order that we presently impose. The order setting bail at $25,000 with surety is vacated. The case is remanded forthwith to the district court with instructions to set bail at $5,000 without surety, and to release the defendant in the custody of his mother, who has indicated a willingness to assume such.
. Uncomfortable as it may be for the U. S. Attorney, particularly in the case of a judge who persists over the years in not observing this rule, we place some burden upon him, at least to call the court’s attention at the time to the oversight (not the judge from whom the present appeal is taken.)
. Under F.R..A.P. 9(a) the district court should have stated its “reasons.” We do not remand in this instance to ascertain whether it agreed in the magistrate’s reasoning because of our decision to consider the matter de novo.
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_r_fed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
DANNER PRESS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16699.
United States Court of Appeals Sixth Circuit.
March 15, 1967.
Edward C. Kaminski, Akron, Ohio, Herman E. Rabe, Buckingham, Doolittle & Burroughs, Akron, Ohio, on brief, for petitioner.
Robert S. Hillman, N. L. R. B., Washington, D. C., for respondent.
Before WEICK, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
CELEBREZZE, Circuit Judge.
Petitioner, Danner Press, Inc., (hereinafter referred to as either Petitioner or Danner Akron), seeks review of an order of the National Labor Relations Board. The Board’s decision and order are reported at 153 N.L.R.B. No. 87. The Board, adopting the findings of the Trial Examiner, found that Danner Akron violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Union concerning its grievance that Danner Akron was assigning struck work to its employees in breach of their collective bargaining contract. The Board also found that the bindery employees of Danner Akron struck in protest against Danner Akron’s refusal to bargain, and that Danner Akron violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they abandoned their strike and offered unconditionally to return to work.
The record discloses the following facts: Petitioner operates a printing business as a job shop in the City of Akron, Ohio. Petitioner employs seven or eight full-time employees and eleven or twelve part-time employees. Approximately one third of Petitioner’s business is derived from Danner Press of Canton, Inc. (hereinafter referred to as Danner Canton), which operates a similar but larger job shop. Local No. 5 of the Bookbinders Union represents the binding employees of both Petitioner and Danner Canton, but in separate bargaining units; and the Union has separate collective bargaining contracts with each Company.
On February 3, 1964, the Danner Canton bookbinders’ bargaining unit commenced an economic strike against Danner Canton. A few days after the strike began, both the employees of Danner Akron and Canton believed that Danner Canton was sending strikebound work to Akron for completion by Danner Akron.
Consequently, on February 17, 1964, Mr. Glenn Moss, International Representative of the Bookbinders, and general employees of Danner Canton, talked to Mr. Swineford at the plant of Danner Akron. Mr. Moss testified that he told Mr. Swineford he was there on a grievance in regard to struck work being performed at Danner Akron. Mr. Swine-ford told Mr. Moss and the committee to leave as they were trespassing. Mr. Moss asked Mr. Swineford when he could get his answer on the grievance, and Mr. Swineford said “tomorrow”. Mr. Swine-ford denied that Mr. Moss asked to discuss or arrange a meeting to discuss with him negotiations concerning the performance of struck work in the Akron plant. Mr. Swineford testified that Mr. Moss asked him to shut down the bindery because they were doing struck work for the Canton plant.
On February 18, 1964, a Danner Akron employee arranged a meeting with Mr. Swineford and with Mr. Moss and Mr. Thur, President of Local No. 5. Mr. Moss, Mr. Thur and several employees of Danner Canton again met with Mr. Swineford. The same views of the conversation and the same result followed as in the meeting the previous day.
After this short meeting of February 18th, the bindery employees of Petitioner met with Petitioner’s President Under-man. Mr. Underman told his employees they had a contract and were obligated to do all the work or they would have to get out. Several employees told Mr. Underman they were doing struck work, and asked him why he would not meet with their Union officials.
On February 19, 1964, Danner Canton employees began picketing Danner Akron. Most of Petitioner’s employees refused to cross the picket line. Later that day, and until March 16, 1964, Petitioner’s employees remained out on strike and picketed Petitioner’s plant until the Danner Canton strike was settled. Neither the International nor the Local was aware of, or took any part in the placement of the original picket line at the Danner Akron plant on the morning of February 19th.
On March 16th, all the striking employees of Petitioner appeared at the plant to start their first shift. Mr. Swineford informed them they had been discharged and replaced.
The evidence of struck work was also conflicting. In September, 1963, Petitioner purchased a McCain machine for their bindery. Because of the large capacity of this machine, and the heavy capital investment, Petitioner agreed to purchase the machine with the understanding that Danner Canton would send more bindery work to Petitioner.
Approximately one-third of Petitioner’s bindery work during 1963 came from Danner Canton. From February 1, 1963 to March 31, 1964 Petitioner did 400 jobs for Danner Canton. Bindery work done for Danner Canton in February, 1963, totaled $861.51, in March, 1963, $7,042.41, in February, 1964, $5,966.42, and March, 1964, $2,480.52.
After the strike began at Danner Canton on February 3rd, the bindery operated only for one shift instead of the normal three shifts. The bindery was not operating at full capacity. On January 30, 1964, Danner Canton received material from Allied Graphic Arts to print and bind a spring and summer catalogue. The proofs were scheduled to go out on January 30th, but did not go out until February 3rd. The proofs came back on February 5th and the job went to press on February 7th. Binding was scheduled to start February 10th, Since the bindery work could not be done in time, the overflow went to Danner Akron. Approximately 1,300,000 pieces were run in Canton and approximately 300,000 pieces were run in Akron.
Mr. Hoffman, Customer Service Representative of Danner Canton, who testified to the above facts, was asked the following questions by the Trial Examiner:
“Q. With only one bindery shift working and with orders on hand which required prompt attention, was there any overflow work caused by this strike which resulted in your shipping work to Akron to be done ?
“A. On any given job or all jobs?
“Q. On any job?
“A. Yes.”
Immediately the Customer Service Representative was asked by Petitioner’s counsel on re-direct examination:
“Q. Mr. Hoffman, with regard to these orders that you had said were to be processed for Canton after February 3rd during the time that the strike was in progress, was the work that was sent to Akron in the nature of overflow work as you have testified?
“A. Yes, it was.
“Q. And are you able to say whether or not this work that went to Akron on the Atkins catalogue job would probably have gone there had there been no strike in the plant at Canton?
“A. Yes.
“Q. —Do you know of your own knowledge, whether the work which was sent to Akron from Canton, which I believe you characterized as overflow, was sent to Akron because of the strike that was in effect in the bindery at Canton ?
“A. No, I do not.”
Early in the proceeding before the Trial Examiner, a lengthy discussion developed between counsel and the Trial Examiner as to the nature of the charge against the Petitioner. The General Counsel for the National Labor Relations Board finally took the position they were trying the case on the theory that the Petitioner failed to bargain on a matter which had not been the subject of previous bargaining, rather than on the theory that the Petitioner failed to negotiate a grievance. The nature of the unfair labor practice charge was crystalized in the following colloquy between the Trial Examiner and counsel:
“Trial Examiner: Now tell me are you definitely ruling this projected theory concerning which I had heard comment from you earlier, namely that by the assignment of struck work to employees that the Respondent was violating the provisions of the contract that it would not require the employees to violate their constitution or bylaws?
“Mr. Szabo: That is correct. We are not.
“Trial Examiner: You are not pursuing it. So that this case may proceed as though this may never have been said by you ?”
The Trial Examiner then found that Petitioner violated Section 8(a) (5) and (1) of the Act by refusing to accept and negotiate the grievance of struck work, and that a finding that Petitioner assigned struck work to its employees was not essential to this holding. The Trial Examiner further found that the employees struck in protest of this unfair labor practice, and that the Petitioner violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they offered to return to work.
The pertinent provisions of the collective bargaining contract between Danner Akron and the Union required the parties
“(1) To appoint a Joint Standing Committee for the Conciliation, consisting of two representatives appointed by the Employer, and two representatives appointed by the Union, to which shall be referred all questions which may arise as to the construction to be placed on any section of this Contract, except as provided otherwise herein or alleged violations thereof, which cannot be settled otherwise herein, and such Joint Standing Committee shall meet when any question of difference shall have been referred to it for decision by the executive officers of either party to this Agreement.
“(2) To present immediately in writing any grievance to the Joint Standing Committee for conciliation. The Committee shall meet to consider any grievance within 48 hours after notice in writing has been filed by either party to the other party. Differences as to scales of wages shall not be considered to be grievances. If an understanding cannot be reached within ten full business days after the grievance has been presented, then the settlement of the grievance shall be left to a Board of Arbitration.”
The bargaining contract provided for certain procedures by which grievances were to be presented and settled. The record discloses these procedures were not followed. The meetings on February 17th and 18th with Danner Akron included the International Representative of the Union, the Local President of the Union and four employees of Danner Canton. No employees of Danner Akron were present at either meeting. No written grievance was presented to Danner Akron.
The Board now takes the position that Petitioner’s contention that the Union failed to file its grievance in accordance with the provisions of their collective bargaining agreement is foreclosed by the express declaration of Petitioner’s counsel that it was not defending the alleged refusal to bargain on this ground. The position of waiver is not well taken. This statement was made prior to the clarification sought by Petitioner’s counsel as to exactly what issues were being tried. Furthermore, this contention should not be available to the General Counsel when the Trial Examiner found that Petitioner refused to negotiate a grievance after the General Counsel said that issue was not in the case.
The confusion, which still persists, as to the nature of the Board’s charge would not have arisen had the provisions of the contract been followed. The parties agreed to an exclusive method of procedure for the presentation of grievances and unless the aggrieved party can show a waiver of such contract procedures, no relief can be obtained where that procedure was not followed. If this procedure had been followed, no question would have arisen as to the nature of the Union’s claim, and the matter may have been settled, or ultimately resolved by the intended and preferential method of arbitration. What was said by the Board in W. L. Mead, Inc., 113 N.L.R.B. 1040 (1955) and approved by the Supreme Court in Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1961), as to the duty to arbitrate, is equally applicable here:
“Every encouragement should be given to the making and enforcement of such clauses. But, if employees may effectively call upon the Board to protect them when they arbitrarily breach clear and binding arbitration clauses of this kind, and turn to the use of economic force for the settlement of grievances rather than to the contractual, quasi judicial procedure, the effect will be to discourage the making of, and the adherence to, contractual arbitration procedures. To hold that a strike in furtherance of such a material breach of a clear and binding contractual arbitration clause is to be protected by this Board would be contrary to the labor policy embodied in the National Labor Relations Act as interpreted by the Courts of Appeals and the Supreme Court.”
We can see no difference between the failure to abide by the contractual requirement to arbitrate and the contractual requirement to follow certain procedures in the presentation of a grievance. See also Midwest Metallic Products, Inc., 121 N.L.R.B. 1317 (1958); and Sohio Chemical Co., 141 N.L.R.B. 810 (1963). While this may appear to be a harsh rule, it is necessary to maintain the integrity of the contract and to provide a uniform and orderly method for settlement of grievances.
The Trial Examiner found that when the picketing of Danner Akron began by Danner Canton employees on February 19th, the failure of Danner Akron employees to enter the plant and work was not due to their employer’s refusal to bargain but out of sympathy with Danner Canton’s employees. Thus the initial walkout and the refusal to cross the picket line was found by the Trial Examiner not to be in protest of the Petitioner’s refusal to entertain a grievance. The Trial Examiner then found that after February 19th, the Danner Akron employees continued to strike because Petitioner refused to meet and negotiate their grievance of struck work, and they then became unfair labor practice strikers.
If the employees of Petitioner were not unfair labor practice strikers when they refused to return to work, we do not see how a change in attitude or motive could cure the defect of their failure to follow the requirements of their contract. We find no evidence in the record that a grievance was filed in accordance with the provisions of the contract. Danner Akron had no obligation to discuss with the employees of Danner Canton a claimed grievance pertaining to the employees of Danner Akron. Nor was petitioner obligated by its contract to accept a grievance from the Danner Canton Union committee.
Since the employees did not follow the grievance procedure, and did not present a grievance in writing, their use of economic force could not be protected under the Act as an unfair labor practice strike. Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., supra. It follows that the Company did not commit an unfair labor practice in hiring replacements for the striking employees.
The Order of the Board is set aside and enforcement is denied.
. International Brotherhood of Bookbinders, Akron Bindery Workers Union, Local No. 5, AFL-CIO.
. While there are ties of management and ownership between the two Companies, the two Companies do not constitute a single employer for purposes of the Act.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
songer_r_fiduc | 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 "fiduciaries". 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.
PRUDENTIAL INS. CO. OF AMERICA v. NELSON. In re CHICKAMAUGA TRUST CO.
No. 7920.
Circuit Court of Appeals, Sixth Circuit.
Feb. 9, 1939.
Burnet Sizer, of Chattanooga, Tenn. (Sizer, Chambliss & Kefauver and J. B. Sizer, all of Chattanooga, Tenn., on the brief), for appellant.
Chas. S. Coffey, of Chattanooga, Tenn. (Chas. S. Coffey and Coffey, McCoy & Durand, all of Chattanooga, Tenn., on the brief), for appellee.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
This is an appeal from a decree of the District Court denying a petition to review the order of the court’s Referee in Bankruptcy.
The Chickamauga Trust Company, a Tennessee corporation, was adjudged á bankrupt on December 31, 1930. For many years prior to this adjudication it was an entrepreneur with The Prudential Insurance Company of America for procuring and making loans on real estate. So much of the contract between the parties as is material to a decision is as follows:
“Paragraph 2 provides that the correspondent shall submit applications for loans subject to the following conditions:
“‘(a) The Insurance Company shall be the sole judge as to such applications as it may, in its absolute discretion, elect to approve.
“ ‘ (b) The Insurance Company shall be the sole judge as to such papers and documents, legal or otherwise, as it may require to be furnished; (1) when a loan application is submitted for approval and (2) as a condition precedent to disbursement. In each and every case, however, the Correspondent shall furnish to the Insurance Company an accurate statement of the cost of the loan to the borrower by way of commissions presently payable and/or commissions payable on a deferred basis.
“‘(c) The Insurance Company. shall be the sole judge as to who shall furnish, examine and/or sign the documents mentioned, in sub-paragraph (b) preceding and shall be the sole judge as to whether or not such documents are satisfactory in form, execution and contents, and as to the legal sufficiency of the title to the security.’ ”
The Trust Company submitted to the Insurance Company for its approval, applications for loans and when approved, it procured and forwarded notes and mortgages payable to the Insurance Company signed'and acknowledged by the borrower and at the same time an abstract of title.
In some cases the Trust Company advanced out of its own funds, less its expenses and commissions, the sum due the borrower and furnished to the Insurance Company satisfactory evidence of its payment. In others, it forwarded the loan contracts and supporting papers to the Insurance Company, together with a statement of its expenses and commissions. In the first type of cases, the Insurance Company remitted to the Trust Company; in the second, to the Trust Company or a designated depository which made disbursements to the borrower and the Trust Company for its commissions and expenses.
Under the first type of loan the binding contracts were on forms prepared by the Trust Company; in the others, on those of the Insurance Company.
The Trust Company collected for the Insurance Company both principal and interest on the loans, which were deposited to its account in the Hamilton National Bank or the First National Bank of Chattanooga, Tennessee. It mailed to the Insurance Company daily reports showing the amount of the collections and under its agreement was to also remit daily.
At the date of bankruptcy, the Trust Company was indebted to the Insurance Company in the sum of $115,000 for collections made, but not remitted.
Prior to bankruptcy and during the calendar year 1930, the Trust Company had submitted to the Insurance Company on forms provided by the latter, nine applications for loans aggregating $10,663.40, which had been approved by the Insurance Company and the Trust Company notified. Subsequently the Trust Company had the borrowers execute notes and mortgages payable to the Insurance Company for the respective' amounts and it paid to them out of its funds the face thereof, less its charges and commissions and charged against the respective borrowers the amounts of the loans.
At the time of bankruptcy the Insurance Company had approved only the applications for these loans and the Trust Company listed them as assets in its schedule filed in the bankruptcy proceedings. Between March 3 and April 1, 1931, the appellee, F. A. Nelson, Trustee in Bankruptcy for the Chickamauga Trust Company, forwarded by registered mail to the appellant, The Prudential Insurance Company of America, Newark, N. J., the completed papers covering the loans.
In all letters of transmittal the trustee advised the Insurance Company that the respective loan “having been completed according to the application and the terms and rules and regulations of The Prudential Insurance Company” he was inclosing the papers consummating the loan. He concluded his letter by requesting the Insurance Company to send him a check as soon as possible covering the amount due the Chickamauga Trust Company for the. sums paid out by it on this account. The Insurance Company retained the notes and mortgages and advised the trustee that it was giving credit of $11,613.07 on the indebtedness of the Chickamauga Trust Company to it at date of bankruptcy.
Shortly thereafter the trustee filed his petition before the Referee in Bankruptcy praying that an order be entered in the proceedings directing the Insurance Company to pay to him the sum withheld by it. The Insurance Company answered and the matter was submitted to the Referee on a stipulation ol facts and he ordered the Insurance Company to pay said sum to the trustee. On petition to review, the lower court sustained the Referee, hence this appeal.
The validity of the challenged decree depends upon the right of set-off in bankruptcy. The Bankruptcy Act, § 68a, 11 U.S.C.A. § 108(a), declares: “In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the accounts shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.”
The words “debts” and “credits” as used in the Act are correlative. What is a debt on one side is a credit on the other. McCollum, Trustee v. Hamilton National Bank, 303 U.S. 245, 249, 58 S.Ct. 568, 82 L.Ed. 819.
The object of the Statute is to permit a statement of the account between the bankrupt and its creditors with a view to the application of the doctrine of set-off between mutual debts and credits. The provision of the Statute docs not enlarge the doctrine of set-off and can be applied only where the general principles of set-off are present. The court applies it under the general principles of equity. Cumberland Glass Mfg. Company v. De Witt, 237 U.S. 447, 457, 35 S.Ct. 636, 59 L.Ed. 1042.
The principle upon which the rule proceeds is that in case of mutual debts, it is only the balance which is the real and just sum owing by or to the bankrupt. When the trustee was vested with title to the assets of the bankrupt, they were subject only to set-off of claims presently due the bankrupt. The rights of the parties being adjusted in equity as of the date of bankruptcy, all the trustee took as assets and all that he was required to pay was the balance subsequently accruing on the contract between the Trust Company and the Insurance Company. The fact that the debt owing to the bankrupt was not due at the date of his adjudication is immaterial.
If the Insurance Company’s debt to the trustee did not accrue until after bankruptcy, then equity does not permit the set-off because as the debt of the Insurance Company did not exist when the estate of the bankrupt passed into the hands of the trustee, the equities of the bankrupt’s other creditors intervene to prevent the depletion of the assets in the hands of the trustee by extinguishing a good debt due the estate by a bad one due a creditor from the estate.
In all cases oí mutual debts, where the insolvency of one of the debtors and the rights of the other creditors in the assigned estate are involved, equity intervenes and modifies the legal right of set-off in order to promote equality and justice. Compare Scott v. Armstrong, 146 U.S. 499, 513, 13 S.Ct. 148, 36 L.Ed. 1059; Western Powder Mfg. Company v. Brewerton Coal Company, 7 Cir., 81 F.2d 85; Standard Oil Company of New Jersey v. Elliott, 4 Cir., 80 F.2d 158; Hood v. Brownlee, 4 Cir., 62 F.2d 675.
The correct interpretation of the contract between the Trust Company and the Insurance Company determines the rights of the parties on this appeal. If the Insurance Company could have been compelled under the contract at the date of bankruptcy to accept the notes subsequently tendered it by the trustee, it is entitled to set-off. Conversely, if it had an option to accept or decline, it is without the right.
In construing contracts, recourse must first be had to the language of the instrument. A true construction of the words or phrases used is the touchstone of legal right. They are to be interpreted according to their strict and primary acceptation unless from the context of the instrument and the intention of the parties to be collected from it they appear to be used in a different sense, the cardinal rule always being to give effect to the intention of the parties in the light of the surrounding circumstances. It is clear from the contract here in question that the Insurance Company retained the absolute unqualified right in its own discretion to accept or reject any application for a loan tendered it by the Trust Company, and its discretion did not end when it accepted the application. It was thereafter to be the sole judge of the sufficiency of the papers and documents, legal or otherwise, and as to the legal sufficiency of the title as security to support the loan. To be “sole judge” means to come to a conclusion or reach an opinion alone, uncontrolled by others. It is certain from this that at the date of bankruptcy, the Insurance Company had not accepted or approved the sufficiency of the title of the security or the documents supporting the loan, therefore, the trustee had no legal right to compel the Insurance Company to accept the notes and it is not entitled to set-off.
It is a fair presumption from the record in this case that the purpose of the Insurance Company in accepting the notes tendered it by the trustee conditioned on it remitting cash was to use their purchase price as an offset.
Under the provisions of the Bankruptcy Act, § 68b, 11 U.S.C.A. § 108(b), a set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which was purchased by or transferred to him after the filing of the petition or within four months before such filing with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy.
On the whole case, we are of the opinion the lower court was correct in denying the appellant relief and the decree is affirmed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
songer_appel2_2_2 | 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 second listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
FIRST NATIONAL BANK AND TRUST COMPANY, et al., Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION, et al. FIRST NATIONAL BANK AND TRUST COMPANY, et al., Lexington State Bank, Appellants, v. NATIONAL CREDIT UNION ADMINISTRATION.
Nos. 91-5262, 91-5336.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 16, 1992.
Decided April 2, 1993.
Michael S. Heifer, with whom William J. Kolasky, Jr., John J. Gill, and Michael F. Crotty, were on the brief, for appellants.
Jonathan R. Siegel, Atty., Dept, of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay P. Stephens, U.S. Atty., and Douglas N. Letter, Atty., Dept, of Justice, were on the brief, for appellee Nat. Credit Union Admin.
Paul J. Lambert and Teresa Burke were on the brief, for appellees AT&T Family Federal Credit Union and Credit Union National Association, Inc.
Edward C. Winslow and William C. Scott were on the brief, for amicus curiae North Carolina Alliance of Community Financial Institutions.
Before: WALD, SILBERMAN, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring opinion filed by Circuit Judge WALD.
SILBERMAN, Circuit Judge:
Appellants, four North Carolina banks and the American Bankers Association, challenged the National Credit Union Administration’s (NCUA) approval of several recent applications by AT & T Family Federal Credit Union (AT & T Family) to expand its membership. According to appellants, the NCUA’s decisions violated the requirement of the Federal Credit Union Act (FCUA) that membership in federal credit unions be limited to “groups having a common bond of occupation or association.” 12 U.S.C. § 1759. The banks complain that, by allowing AT & T Family improperly to extend its membership and thereby its number of potential borrowing customers, the NCUA has made the credit union a formidable competitor. The district court applied the “zone of interests” tests for prudential standing and determined that appellants lacked standing to sue. Although we agree with the district court that the appellants were not intended beneficiaries of the FCUA, we think that they are suitable challengers because the statute arguably prohibits the competition of which they complain. This case thus falls within the rationale of Clarke v. Securities Industry Association, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987), and Investment Company Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). We reverse and remand to the district court.
I.
Passed in 1934 in the midst of the Great Depression, the FCUA, 12 U.S.C. §§ 1751-1795k (1988), was designed to improve access to credit for people of “small means.” S.Rep. No. 555, 73d Cong., 2d Sess. 1 (1934). For many working Americans, credit at reasonable rates had essentially disappeared in the years following the stock market crash. Lacking the security necessary to obtain loans from banks, working Americans turned to loan sharks who typically charged usurious interest rates, which was thought to reduce the overall purchasing power of American consumers. See 78 Cong.ReC. 12,223 (1934). Congress saw the solution to this problem in a system of federal credit unions that would provide credit at reasonable rates and thus would help spur economic recovery. See id. at 7260, 12,223-25.
To ensure that credit unions fulfilled their purpose of meeting members’ credit needs, Congress restricted credit unions’ management and business activities. For example, a federal credit union is owned and controlled by its members, see 12 U.S.C. §§ 1757-1761, and it can make loans only to members or to other credit unions, see id. § 1757(5). Congress expected that such measures guaranteeing democratic self-government would infuse the credit union with a spirit of cooperative self-help and ensure that the credit union would remain responsive to its members’ needs.
A related provision of the FCUA, the common bond requirement, is at the heart of this case. Section 109 of the Act restricts membership in federal credit unions to "groups having a common bond of occupation or association.” 12 U.S.C. § 1759. For much of the Act’s history, the NCUA interpreted this provision to require all members of a credit union to share the same bond. In the 1980s, however, the NCUA issued a series of Interpretive Ruling and Policy Statements (IRPS) construing the statute to allow a number of different groups, each having its own bond, to form a credit union, even though no overall common bond united the different groups. See 47 Fed.Reg. 26,808 (1982) (IRPS 82-3); 48 Fed.Reg. 22,899 (1983); 49 Fed.Reg. 46,-536 (1984) (IRPS 84-1); 54 Fed.Reg. 31,165 (1989) (IRPS 89-1). The NCUA's most recent interpretation, IRPS 89-1, made clear that a credit union could comprise a “combination of distinct, definable occupational and/or associational groups.” 54 Fed.Reg. 31,165, 31,170 (1989).
Appellants challenged several decisions in which the NCUA applied IRPS 89-1 to approve applications by AT & T Family to expand its field of membership. Until recently, AT & T Family’s membership consisted primarily of employees of AT & T Technologies, Inc., AT & T Network Systems, and Bell Telephone Labs. In late 1989 and 1990, AT & T Family filed eight applications to extend its membership to include groups of employees from other companies such as the American Tobacco Company, Western Auto Supply Company, and WGHP-TV, to name but a few. In all, the NCUA approved the extension of AT & T Family’s membership to 16 new employee groups. Appellants claimed before the agency and in the district court that IRPS 89-1 ignored the statutory language by allowing groups lacking any common bond between them to join together in a credit union. The banks contended that by allowing AT & T Family to expand to 71,000 members in violation of the statute, the NCUA has allowed the credit union, which is exempt from state and federal income taxes, see 12 U.S.C. § 1768, to become a formidable competitor to banks.
The district court granted NCUA’s motion to dismiss for lack of standing. The court determined that appellants were not pressing claims “arguably within the zone of interests” protected by the FCUA. See First Nat’l Bank & Trust Co. v. National Credit Union Admin., 772 F.Supp. 609, 611-13 (D.D.C.1991). Relying on the language of this court’s post-Clarke decisions on prudential standing, see, e.g., Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918 (D.C.Cir.1989) (HWTC IV); Hazardous Waste Treatment Council v. United States Envtl. Protection Agency, 861 F.2d 277 (D.C.Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989) (HWTC II), the district court said that “[t]hose not regulated by an agency have standing only if they are the intended beneficiaries of the specific statute or are nonetheless ‘suitable challengers’ to the statute because their interests coincide with the interests which Congress did intend to protect.” First Nat’l Bank, 772 F.Supp. at 611. The banks were not intended beneficiaries of the Act, thought the district court, because “the Act was passed to establish a place for credit unions within the country’s financial market, and specifically not to protect the competitive interest of banks.” Id. at 612; see also Branch Bank & Trust Co. v. National Credit Union Admin. Bd., 786 F.2d 621 (4th Cir.1986), cert. denied, 479 U.S. 1063, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). Under applicable precedent, the district court believed that the banks were not suitable challengers either. Because the banks and the credit union competed for the same business, any coincidence in their interests “would be at best fortuitous.” First Nat’l Bank, 772 F.Supp. at 612. The banks, according to the district court, could not rely on the Supreme Court’s cases, see, e.g., Clarke v. Securities Industry Ass’n, 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); Investment Co. Inst. v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (ICI); Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), that granted standing to competitors as suitable challengers because, unlike the competitors in those cases, the banks were not suing under an entry-restricting statute. See First Nat’l Bank, 772 F.Supp. at 613.
II.
It should be noted that no one questions appellants’ Article III standing; that appellants will suffer competitive or economic injury is not in doubt. The question before us is whether under the FCUA the banks can claim prudential standing as well. In other words, are they pursuing an interest (not just an objective), see HWTC IV, 885 F.2d at 925, arguably within the zone of interests Congress intended either to regulate or protect, and, thus, are they among the class of persons entitled to sue to enforce FCUA’s restrictions? See Clarke, 479 U.S. at 396, 107 S.Ct. at 755; Data Processing, 397 U.S. at 153, 90 S.Ct. at 829. This “zone of interests” test ensures that standing is granted only to plaintiffs who will not distort congressional objectives. It excludes those plaintiffs whose “interests are so marginally related-to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke, 479 U.S. at 399, 107 S.Ct. at 757. Because the banks are not regulated by the common bond requirement, we must inquire whether the banks can be thought to have been “protected” by that statutory limitation on the activities of credit unions. Litigants can qualify as “protected” by a statute if they are intended beneficiaries of the legislation or are nevertheless what we have termed suitable challengers, see HWTC IV, 885 F.2d at 923-24; that is, if their interests are sufficiently congruent with those of the intended beneficiaries that the litigants are not “more likely to frustrate than to further the statutory objectives.” Clarke, 479 U.S. at 397 n. 12, 107 S.Ct. at 756 n. 12.
Appellants claim that they qualify both as intended beneficiaries and as suitable challengers under the FCUA. We agree with the district court, however, that Congress did not, in 1934, intend to shield banks from competition from credit unions. Indeed, the very notion seems anomalous, because Congress’ general purpose was to encourage the proliferation of credit unions, which were expected to provide service to those would-be customers that banks disdained. See 78 Cong.Rec. 7259 (1934) (statement of Sen. Barkley) (“[B]ank[s] ... cannot extend credit to many of these people, because they do not have the required security.”); id. at 12,225 (statement of Rep. Luce) (noting that credit unions would serve those “who do not use and cannot use banks ... for small borrowings”). The common bond requirement, an existing characteristic of state credit unions, was designed, in combination with the restriction that permitted credit unions to loan only to members, to ensure that credit unions would effectively meet members’ borrowing needs. It would seem, therefore, that Congress assumed implicitly that a common bond amongst members would ensure both that those making lending decisions would know more about applicants and that borrowers would be more reluctant to default. That is surely why it was thought that credit unions, unlike banks, could “loan on character.” See id. at 12,-223. The common bond was seen as the cement that united credit union members in a cooperative venture, and was, therefore, thought important to credit unions’ continued success.
To be sure, as time passed — as credit unions flourished and competition among consumer lending institutions intensified— bankers began to see the common bond requirement as a desirable limitation on credit union expansion. To that end, in the 1970s bankers, according to appellants, became active in lobbying Congress to urge the maintenance of the common bond requirement. But that fact, assuming it is true, hardly serves to illuminate the intent of the Congress that first enacted the common bond requirement in 1934. And we find no indication that Congress was, at that earlier time, concerned about the competitive position of banks.
There remains, however, the more subtle question, whether banks can be thought suitable challengers to enforce a requirement designed to benefit the members— particularly potential borrowers — of credit unions. Appellants rely on the Supreme Court’s reasoning in ICI and Clarke, and it seems to us the parallels between those cases and the present one are striking. In ICI the securities industry challenged a ruling by the Comptroller of the Currency that would have permitted banks to slip the Glass-Steagall leash and enter what was considered a part of the securities business. See ICI, 401 U.S. at 618-19, 91 S.Ct. at 1092-93. As the Supreme Court later explained in Clarke, the Glass-Steagall Act, which limited the securities underwriting and investment activities of banks, was designed to protect bank depositors from risky bank activities — not to insulate investment bankers, or indeed, any noncommercial bankers, from competition. See Clarke, 479 U.S. at 398 & n. 13, 107 S.Ct. at 756 & n. 13. Nevertheless, because the investment bankers pursued interests congruent with those of the intended beneficiaries, they were permitted to sue in ICI to enforce Glass-Steagall’s restrictions on banks.
Similarly, in Clarke the ever-vigilant securities industry was permitted to challenge a Comptroller decision that authorized a national bank to offer discount brokerage services not only at its established branches, but also at locations both inside and outside the bank’s home state. The challenge was based on the McFadden Act, which restricts the interstate branching of national banks. See Clarke, 479 U.S. at 391, 107 S.Ct. at 752. The Act was designed to establish competitive equality between national and state banks and thus to protect smaller banks from competition from out-of-state leviathans, see First Nat’l Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 497, 17 L.Ed.2d 343 (1966), not to protect investment bankers. Nevertheless, the investment bankers had standing to sue. The Supreme Court relied on the correlative congressional objective of preventing national banks from gaining too much (“monopoly”) control over credit and money through “unlimited branching.” Clarke, 479 U.S. at 402, 107 S.Ct. at 758. Given that general congressional purpose, the Court thought that the securities industry, which was a competitor at least with respect to discount brokerage services, was a suitable challenger. In other words, even though the Congress that passed the McFadden Act was not at all concerned with the spread of discount brokerage— only branch-banking — and the securities industry was a competitor with regard to the former, not the latter, it was nevertheless permitted to challenge the spread of discount brokerage through the McFadden Act, again because of the congruence of plaintiffs’ interests with those of the intended beneficiaries.
We take from these cases the principle that a plaintiff who has a competitive interest in confining a regulated industry within certain congressionally imposed limitations may sue to prevent the alleged loosening of those restrictions, even if the plaintiffs interest is not precisely the one that Congress sought to protect. The limitations may be restrictions on entry — geographic or product line — or they might be, as in our case, limitations on growth, which are akin to entry restrictions. Like more classic entry restrictions, the common bond requirement, by limiting a credit union’s customer base, effectively prevents the credit union from offering its services and competing in a broader market.
We previously have recognized the particular significance of statutory entry restrictions on prudential standing. In HWTC II, we distinguished the case before us from the Supreme Court’s cases granting standing to competitors {Data Processing, ICI, and Clarke), on the grounds that it did not involve an “entry-restricting” statute. See HWTC II, 861 F.2d at 284. Similarly, in Panhandle Producers & Royalty Owners Ass’n v. Economic Regulatory Administration, 822 F.2d 1105 (D.C.Cir.1987), we noted that “[cjompeti-tors have a seemingly unbroken record of success in securing standing” in eases involving regulatory systems that “restrict[ ] entry into a particular field or transaction.” Id. at 1109. Indeed, the district court attempted to distinguish this case from ICI and Clarke on the grounds that the common bond requirement was not an entry restriction. See First Nat’l Bank, 112 F.Supp. at 613.
Appellees, sidestepping the entry-restriction cases, rely primarily on our refinement of prudential standing analysis in HWTC IV. In that case, an organization of companies that treated hazardous waste and marketed products derived from processed waste sued to force the EPA to adopt stricter environmental regulations on other companies so as to create a greater market for their own services and products. We held that HWTC’s interests (irrespective of its particular objectives in the case before us) were not sufficiently congruent with those of the intended beneficiaries of the statute to make HWTC a suitable challenger. See HWTC IV, 885 F.2d at 924. The treatment firms’ interest was in selling more services and equipment to the regulated companies, and therefore the firms would seek regulations that would increase demand for their product regardless of the effects on the statute’s intended beneficiaries. We concluded that to have standing under the statute, HWTC would have to have shown a systematic alignment of interests with the statute’s beneficiaries, see id. at 924, a standard that appellees understandably claim was stricter than our prior characterization of Clarke as a test requiring “less than a showing of congressional intent to benefit but more than a marginal relationship to the statutory purposes.” HWTC II, 861 F.2d at 283.
Our decision did not rest on a conclusion that the economic interests of the treatment firms were somehow less deserving than the environmental interests the statute was designed to foster; nor was it based on a view that the firms’ economic incentives were inherently less worthy than the economic objectives of the securities industry plaintiffs in ICI and Clarke. On the contrary, the economic motivations could be thought analogous. If the watchword of the treatment firms in HWTC IV was “treatment is good and more treatment is better,” HWTC IV, 885 F.2d at 925, it might be said that the watchword of all competitors with regard to their potential rivals must be “regulation is good and more restrictive regulation is better.” And one cannot base standing on one’s mere status as an economic beneficiary of government regulation of others. In Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the Supreme Court said:
[T]he failure of an agency to comply with a statutory provision requiring “on the record” hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be “adversely affected within the meaning” of the statute.
Id. at 883, 110 S.Ct. at 3186.
The distinction between HWTC IV and the Supreme Court’s Lujan hypothetical on the one hand and ICI and Clarke on the other must be that in ICI and Clarke the potentially limitless incentives of competitors were channelled by the terms of the statute into suits of a limited nature brought to enforce the statutory demarcation dividing the banking and securities industries. The interests the securities industry plaintiffs sought to protect were thus less open-ended and more confined than were the economic interests pursued in HWTC IV, and as a result there was a reduced danger of distorting congressional purpose. By contrast, nothing in the statute in HWTC IV could ensure that there would be any connection at all between the treatment firms’ interests and the statutory purpose. “[TJhere is not the slightest reason to think that treatment firms’ interest in getting more revenue by increasing the demand for their particular treatment services will serve [the statute’s] purpose of protecting health and the environment.” HWTC IV, 885 F.2d at 924. There is, however, a reason to think that a competitor’s interest in patrolling a statutory picket line will bear some relation to the congressional purpose, because the entry-like restriction itself reflects a congressional judgment that the constraint on competition is the means to secure the statutory end. The restriction connects the economic interests of competitors to the purposes of the statute and yet constrains competitors to a limited role in guarding a congressionally drawn boundary. In these circumstances the plaintiffs can be thought to have interests “systematically aligned” with those the statute is designed to benefit.
The securities industry plaintiffs in ICI and Clarke were not seeking to impose new regulations on banks in areas unrelated to an existing, specific statutory norm simply to provide a demand for their services or to weaken banks as competitors. We certainly would not accept as a suitable plaintiff a party who had only a general economic interest in harming a competitor and who, accordingly, sought to impose some new, more onerous regulation upon that competitor. See, e.g., Calumet Indus., Inc. v. Brock, 807 F.2d 225, 228 (D.C.Cir.1986). But, when the plaintiff seeks to enforce a statutory restriction on his competitor — a restriction the plaintiff enjoys as well as the statutory beneficiaries — there is a good deal less risk that recognizing the plaintiffs standing will lead to a misdirection of a statutory scheme.
Our reasoning in HWTC suggests that our reaction might be different if the banks appeared before us, not asking to patrol the common bond picket line, but seeking a new regulation that would squeeze the credit unions into a smaller market or even eliminate them from the market altogether. It is unnecessary, however, to extend our holding into a definitive answer to appellants’ hypotheticals; we concede that the general issue is devilishly complex. We feel confident, however, that this case is a good deal closer to the paradigm of ICI and Clarke than it is to HWTC, and, therefore, we hold that appellants have standing. The judgment of the district court is reversed and the case remanded.
. In HWTC IV, we emphasized that "it is the interests that the challenger seeks to protect and not the challenge with which we must be concerned.” HWTC IV, 885 F.2d at 925.
. The Senate report on the bill praised credit unions for their record of successful service during the Depression, a record that contrasted sharply with a grim history of bank failures, and attributed the success largely to credit unions’ self-government and attentiveness to members’ needs. See Sen.Rep. No. 555, 73d Cong., 2d Sess. 2-4 (1934).
. We cannot agree with the pre-Clarke reasoning of Branch Bank & Trust Co. v. National Credit Union Administration Board, 786 F.2d 621 (4th Cir.1986), in which the Fourth Circuit focused exclusively on the question whether banks’ interests were intended to be protected under the FCUA and concluded that banks do not have standing under the FCUA, see id. at 626. The subsequent explication of the suitable challenger route to standing in Clarke empties the Branch Bank decision of its persuasiveness.
. We have expressed concern in the past about allowing potential plaintiffs to gain standing through a facile assertion that they are enforcing entry-restricting legislation (a concern that again highlights the importance we have implicitly attached to entry restrictions in standing cases). See HWTC II, 861 F.2d at 284. This, of course, is not such a case.
. Perhaps it is also relevant — in considering whether a plaintiff has prudential standing, if not Article III standing, see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)— to ask whether, as the Supreme Court may well have in ICI, one can be confident that the intended beneficiaries had sufficient incentive and organizational resources to sue. See HWTC II, 861 F.2d at 284.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer: |
sc_lcdispositiondirection | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
CHENEY, VICE PRESIDENT OF THE UNITED STATES, et al. v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA et al.
No. 03-475.
Argued April 27, 2004 —
Decided June 24, 2004
Solicitor General Olson argued the cause for petitioners. With him on the briefs were Assistant Attorney General Keisler, Deputy Solicitor General Clement, Deputy Assistant Attorneys General Katsas and Coffin, and Mark B. Stern, Michael S. Raab, and Douglas Hallward-Driemeier.
Alan B. Morrison argued the cause for respondent Sierra Club. With him on the brief were Scott Nelson, David Bookbinder, Patrick Gallagher, Alex Levinson, and Sanjay Narayan. Paul J. Orfanedes argued the cause for respondent Judicial Watch, Inc. With him on the brief was James F. Peterson.
Briefs of amici curiae urging affirmance were filed for the American Association of Law Libraries et al. by David Overlock Stewart, Thomas M. Susman, Miriam M. Nisbet, Mark David Agrast, Meredith Fuchs, and Elliot M. Mincberg; for Natural Resources Defense Council by Eric R. Glitzenstein, Howard M. Crystal, and Sharon Buccino; and for The Reporters Committee for Freedom of the Press et al. by Lucy A. Dalglish, Richard M. Schmidt, Jr., and Bruce W. Sanford.
Justice Kennedy
delivered the opinion of the Court.
The United States District Court for the District of Columbia entered discovery orders directing the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President. This case requires us to consider the circumstances under which a court of appeals may exercise its power to issue a writ of mandamus to modify or dissolve the orders when, by virtue of their overbreadth, enforcement might interfere with the officials in the discharge of their duties and impinge upon the President’s constitutional prerogatives.
I
A few days after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The Group was directed to “develo[p]... a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future.” App. 156-157. The President assigned a number of agency heads and assistants — all employees of the Federal Government — to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite “other officers of the Federal Government” to participate “as appropriate.” Id., at 157. Five months later, the NEPDG issued a final report and, according to the Government, terminated all operations.
Following publication of the report, respondents Judicial Watch, Inc., and the Sierra Club filed these separate actions, which were later consolidated in the District Court. Respondents alleged the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act (FACA or Act), 5 U. S. C. App. §2, p. 1.
FACA was enacted to monitor the “numerous committees, boards, commissions, councils, and similar groups [that] have been established to advise officers and agencies in the executive branch of the Federal Government,” § 2(a), and to prevent the “wasteful expenditure of public funds” that may result from their proliferation, Public Citizen v. Department of Justice, 491 U. S. 440, 453 (1989). Subject to specific exemptions, FACA imposes a variety of open-meeting and disclosure requirements on groups that meet the definition of an “advisory committee.” As relevant here, an “advisory committee” means
“any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof..., which is—
“(B) established or utilized by the President,... except that [the definition] excludes (i) any committee that is composed wholly of full-time, or permanent part-time, officers, or employees of the Federal Government....” 5 U. S. C. App. §3(2), p. 2.
Respondents do not dispute the President appointed only Federal Government officials to the NEPDG. They agree that the NEPDG, as established by the President in his memorandum, was “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.” Ibid. The complaint alleges, however, that “non-federal employees,” including “private lobbyists,” “regularly attended and fully participated in non-public meetings.” App. 21 (Judicial Watch Complaint ¶ 25). Relying on Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F. 2d 898 (CADC 1993) (AAPS), respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. According to the complaint, their “involvement and role are functionally indistinguishable from those of the other [formal] members.” Id., at 915. As a result, respondents argue, the NEPDG cannot benefit from the Act’s exemption under subsection B and is subject to FACA’s requirements.
Vice President Cheney, the NEPDG, the Government officials who served on the committee, and the alleged de facto members were named as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA’s requirements.
All defendants moved to dismiss. The District Court granted the motion in part and denied it in part. The court acknowledged FACA does not create a private cause of action. On this basis, it dismissed respondents’ claims against the non-Government defendants. Because the NEPDG had been dissolved, it could not be sued as a defendant; and the claims against it were dismissed as well. The District Court held, however, that FACA’s substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act, 28 U. S. C. § 1361, and against the agency defendants under the Administrative Procedure Act (APA), 5 U. S. C. § 706. The District Court recognized the disclosure duty must be clear and nondiscretionary for mandamus to issue, and there must be, among other things, “final agency actions” for the APA to apply. According to the District Court, it was premature to decide these questions. It held only that respondents had alleged sufficient facts to keep the Vice President and the other defendants in the case..
The District Court deferred ruling on the Government’s contention that to disregard the exemption and apply FACA to the NEPDG would violate principles of separation of powers and interfere with the constitutional prerogatives of the President and the Vice President. Instead, the court allowed respondents to conduct a “tightly-reined” discovery to ascertain the NEPDG’s structure and membership, and thus to determine whether the de facto membership doctrine applies. Judicial Watch, Inc. v. National Energy Policy Dev. Group, 219 F. Supp. 2d 20, 54 (DC 2002). While acknowledging that discovery itself might raise serious constitutional questions, the District Court explained that the Government could assert executive privilege to protect sensitive materials from disclosure. In the District Court’s view, these “issues of executive privilege will be much more limited in scope than the broad constitutional challenge raised by the government.” Id., at 55. The District Court adopted this approach in an attempt to avoid constitutional questions, noting that if, after discovery, respondents have no evidentiary support for the allegations about the regular participation by lobbyists and industry executives on the NEPDG, the Government can prevail on statutory grounds. Furthermore, the District Court explained, even were it appropriate to address constitutional issues, some factual development is necessary to determine the extent of the alleged intrusion into the Executive’s constitutional authority. The court denied in part the motion to dismiss and ordered respondents to submit a discovery plan.
In due course the District Court approved respondents’ discovery plan, entered a series of orders allowing discovery to proceed, see CADC App. 238, 263, 364 (reproducing orders entered on Sept. 9, Oct. 17, and Nov. 1, 2002), and denied the Government’s motion for certification under 28 U. S. C. § 1292(b) with, respect to the discovery orders. Petitioners sought a writ of mandamus in the Court of Appeals to vacate the discovery orders, to direct the District Court to rule on the basis of the administrative record, and to dismiss the Vice President from the suit. The Vice President also filed a notice of appeal from the same orders. See Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949); United States v. Nixon, 418 U. S. 683 (1974).
A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President’s attempted interlocutory appeal. In re Cheney, 334 F. 3d 1096 (CADC 2003). With respect to mandamus, the majority declined to issue the writ on the ground that alternative avenues of relief remained available. Citing United States v. Nixon, supra, the majority held that petitioners, to guard against intrusion into the President’s prerogatives, must first assert privilege. Under its reading of Nixon, moreover, privilege claims must be made “‘with particularity.’” 334 F. 3d, at 1104. In the majority’s view, if the District Court sustains the privilege, petitioners will be able to obtain all the relief they seek. If the District Court rejects the claim of executive privilege and creates “an imminent risk of disclosure of allegedly protected presidential communications,” “mandamus might well be appropriate to avoid letting ‘the cat... out of the bag.’ ” Id., at 1104-1105. “But so long as the separation of powers conflict that petitioners anticipate remains hypothetical,” the panel held, “we have no authority to exercise the extraordinary remedy of mandamus.” Id., at 1105. The majority acknowledged the scope of respondents’ requests is overly broad, because it seeks far more than the “limited items” to which respondents would be entitled if “the district court ultimately determines that the NEPDG is subject to FACA.” Id., at 1105-1106; id., at 1106 (“The requests to produce also go well beyond FACA’s requirements”); ibid. (“[Respondents’] discovery also goes well beyond what they need to prove”). It nonetheless agreed with the District Court that petitioners “ ‘shall bear the burden’ ” of invoking executive privilege and filing objections to the discovery orders with “‘detailed precision.’” Id., at 1105 (quoting Aug. 2, 2002, Order).
For similar reasons, the majority rejected the Vice President’s interlocutory appeal. In United States v. Nixon, the Court held that the President could appeal an interlocutory subpoena order without having “to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review.” 418 U. S., at 691. The majority, however, found the case inapplicable because Vice President Cheney, unlike then-President Nixon, had not yet asserted privilege. In the majority’s view, the Vice President was not forced to choose between disclosure and suffering contempt for failure to obey a court order. The majority held that to require the Vice President to assert privilege does not create the unnecessary confrontation between two branches of Government described in Nixon.
Judge Randolph filed a dissenting opinion. In his view A APS’ de facto membership doctrine is mistaken, and the Constitution bars its application to the NEPDG. Allowing discovery to determine the applicability of the defacto membership doctrine, he concluded, is inappropriate. He would have issued the writ of mandamus directing dismissal of the complaints. 334 F. 3d, at 1119.
We granted certiorari. 540 U. S. 1088 (2003). We now vacate the judgment of the Court of Appeals and remand the ease for further proceedings to reconsider the Government’s mandamus petition.
II
As a preliminary matter, we address respondents’ argument that the Government’s petition fór a writ of mandamus was jurisdictionally out of time or, alternatively, barred by the equitable doctrine of laches. According to respondents, because the Government’s basic argument was one of discovery immunity — that is, it need not invoke executive privilege or make particular objections to the discovery requests — the mandamus petition should have been filed with the Court of Appeals within 60 days after the District Court denied the Government’s motion to dismiss. Sée Fed. Rule App. Proc. 4(a)(1)(B) (“When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered”). On this theory, the last day for making any filing to the Court of Appeals was September 9, 2002. The Government, however, did not file the mandamus petition and the notice of appeal until November 7, four months after the District Court issued the order that, under respondents’ view, commenced the time for appeal.
As even respondents acknowledge, however, Rule 4(a), by its plain terms, applies only to the filing of a notice of appeal. Brief for Respondent Sierra Club 23. Rule 4(a) is inapplicable to the Government’s mandamus petition under the All Writs Act, 28 U. S. C. § 1651. Because we vacate the Court of Appeals’ judgment and remand the case for further proceedings for the court to consider whether a writ of mandamus should have issued, we need not decide whether the Vice President also could have appealed the District Court’s orders under Nixon and the collateral order doctrine. We express no opinion on whether the Vice President’s notice of appeal was timely filed.
Respondents’ argument that the mandamus petition was barred by laches does not withstand scrutiny. Laches might bar a petition for a writ of mandamus if the petitioner “slept upon his rights..., and especially if the delay has been prejudicial to the [other party], or to the rights of other persons,” Chapman v. County of Douglas, 107 U. S. 348, 355 (1883). Here, the flurry of activity following the District Court’s denial of the motion to dismiss overcomes respondents’ argument that the Government neglected to assert its rights. The Government filed, among other papers, a motion for a protective order on September 3; a motion to stay pending appeal on October 21; and a motion for leave to appeal pursuant to 28 U. S. C. § 1292(b) on October 23. Even were we to agree that the baseline for measuring the timeliness of the Government’s mandamus petition was the District Court’s order denying the motion to dismiss, the Government’s active litigation posture was far from the neglect or delay that would make the application of laches appropriate.
We do not accept, furthermore, respondents’ argument that laches should apply because the motions filed by the Government following the District Court’s denial of its motion to dismiss amounted to little more than dilatory tactics to “delay and obstruct the proceedings.” Brief for Respondent Sierra Club 23. In light of the drastic nature of mandamus and our precedents holding that mandamus may not issue so long as alternative avenues of relief remain available, the Government cannot be faulted for attempting to resolve the dispute through less drastic means. The law does not put litigants in the impossible position of having to exhaust alternative remedies before petitioning for mandamus, on the one hand, and having to file the mandamus petition at the earliest possible moment to avoid laches, on the other. The petition was properly before the Court of Appeals for its consideration.
Ill
We now come to the central issue in the case — whether the Court of Appeals was correct to conclude it “ha[d] no authority to exercise the extraordinary remedy of mandamus,” 334 F. 3d, at 1105, on the ground that the Government could protect its rights by asserting executive privilege in the District Court.
The common-law writ of mandamus against a lower court is codified at 28 U. S. C. § 1651(a): “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” This is a “drastic and extraordinary” remedy “reserved for really extraordinary causes.” Ex parte Fahey, 332 U. S. 258, 259-260 (1947). “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed juris-’ diction.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). Although courts have not “confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ ” Will v. United States, 389 U. S. 90, 95 (1967), “only exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” ibid., or a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 383 (1953), “will justify the invocation of this extraordinary remedy,” Will, 389 U. S., at 95.
As the writ is one of “the most potent weapons in the judicial arsenal,” id., at 107, three conditions must be satisfied before it may issue. Kerr v. United States Dist. Court for Northern Dist. of Cal, 426 U. S. 394, 403 (1976). First, “the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires,” ibid. — a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process, Fahey, supra, at 260. Second, the petitioner must satisfy “‘the burden of showing that [his] right to issuance of the writ is “clear and indisputable.’”” Kerr, supra, at 403 (quoting Bankers Life & Casualty Co., supra, at 384). Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. Kerr, supra, at 403 (citing Schlagenhauf v. Holder, 379 U.S. 104, 112, n. 8 (1964)). These hurdles, however demanding, are not insuperable. This Court has issued the writ to restrain a lower court when its actions would threaten the separation of powers by “embarrassing] the executive arm of the Government,” Ex parte Peru, 318 U. S. 578, 588 (1943), or result in the “intrusion by the federal judiciary on a delicate area of federal-state relations,” Will, supra, at 95 (citing Maryland v. Soper (No. 1), 270 U. S. 9 (1926)).
Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’” United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that “[i]n no case... would a court be required to proceed against the president as against an ordinary individual.” United States v. Burr, 25 F. Cas. 187, 192 (No. 14, 694) (CC Va. 1807). See also Clinton v. Jones, 520 U. S. 681, 698-699 (1997) (“We have, in short, long recognized the ‘unique position in the constitutional scheme’ that [the Office of the President] occupies” (quoting Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982))); 520 U. S., at 710-724 (Breyer, J., concurring in judgment). As United States v. Nixon explained, these principles do not mean that the “President is above the law.” 418 U. S., at 715. Rather, they simply acknowledge that the public interest requires that a coequal, branch of Government “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,” ibid., and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.
These separation-of-powers considerations should inform a court of appeals’ evaluation of a mandamus petition involving the President or the Vice President. Accepted mandamus standards are broad enough to allow a court of appeals to prevent a lower court from interfering with a coequal branch’s ability to discharge its constitutional responsibilities. See Ex parte Peru, supra, at 587 (recognizing jurisdiction to issue the writ because “the action of the political arm of the Government taken within its appropriate sphere [must] be promptly recognized, and... delay and inconvenience of a prolonged litigation [must] be avoided by prompt termination of the proceedings in the district court”); see also Clinton v. Jones, supra, at 701 (“We have recognized that ‘[e]ven when a branch does not arrogate power to itself... the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties’ ” (quoting Loving v. United States, 517 U. S. 748, 757 (1996))).
IV
The Court of Appeals dismissed these separation-of-powers concerns. Relying on United States v. Nixon, it held that even though respondents’ discovery requests are overbroad and “go well beyond FACA’s requirements,” the Vice President and his former colleagues on the NEPDG “ ‘shall bear the burden’ ” of invoking privilege with narrow specificity and objecting to the discovery requests with “ ‘detailed precision.’ ” 334 F. 3d, at 1105-1106. In its view, this result was required by Nixon’s rejection of an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” 418 U. S., at 706. If Nixon refused to recognize broad claims of confidentiality where the President had asserted executive privilege, the majority reasoned, Nixon must have rejected, a fortiori, petitioners’ claim of discovery immunity where the privilege has not even been invoked. According to the majority, because the Executive Branch can invoke executive privilege to maintain the separation of powers, mandamus relief is premature.
This analysis, however, overlooks fundamental differences in the two cases. Nixon cannot bear the weight the Court of Appeals puts upon it. First, unlike this case, which concerns respondents’ requests for information for use in a civil suit, Nixon involves the proper balance between the Executive’s interest in the confidentiality of its communications and the “constitutional need for production of relevant evidence in a criminal proceeding.” Id., at 713. The Court’s decision was explicit that it was “not... concerned with the balance between the President’s generalized interest in confidentiality and the need for relevant evidence in civil litigation.... We address only the conflict between the President’s assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.” Id., at 712, n. 19.
The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. As the Court explained, the need for information in the criminal context is much weightier because “our historic[al] commitment to the rule of law... is nowhere more profoundly manifest than in our view that ‘the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.’ ” Id., at 708-709 (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In light of the “fundamental”. and “comprehensive” need for “every man’s evidence” in the criminal justice system, 418 U. S., at 709, 710, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be “expansively construed, for they are in derogation of the search for truth,” id., at 710. The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same “constitutional dimensions.” Id., at 711.
The Court also observed in Nixon that a “primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.” Id., at 707. Withholding materials from a tribunal in an ongoing criminal case when the information is necessary to the court in carrying out its tasks “conflict[s] with the function of the courts under Art. III.” Ibid. Such an impairment of the “essential functions of [another] branch,” ibid., is impermissible. Withholding the information in this case, however, does not hamper another branch’s ability to perform its “essential functions” in quite the same way. Ibid. The District Court ordered discovery here, not to remedy known statutory violations, but to ascertain whether FACA’s disclosure requirements even apply to the NEPDG in the first place. Even if FACA embodies important congressional objectives, the only consequence from respondents’ inability to obtain the discovery they seek is that it would be more difficult for private complainants to vindicate Congress’ policy objectives under FACA. And even if, for argument’s sake, the reasoning in Judge Randolph’s dissenting opinion in the end is rejected and FACA’s statutory objectives would be to some extent frustrated, it does not follow that a court’s Article III authority or Congress’ central Article I powers would be impaired. The situation here cannot, in fairness, be compared to Nixon, where a court’s ability to fulfill its constitutional responsibility to resolve cases and controversies within its jurisdiction hinges on the availability of certain indispensable information.
A party’s need for information is only one facet of the problem. An important factor weighing in the opposite direction is the burden imposed by the discovery orders. This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. The Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives. As we have already noted, special considerations control when the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. This Court has held, on more than one occasion, that “[t]he high respect that is owed to the office of the Chief Executive... is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery,” Clinton, 520 U. S., at 707, and that the Executive’s “constitutional responsibilities and status [are] factors counseling judicial deference and restraint” in the conduct of litigation against it, Nixon v. Fitzgerald, 457 U. S., at 753. Respondents’ reliance on cases that do not involve senior members of the Executive Branch, see, e. g., Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U. S. 394 (1976), is altogether misplaced.
Even when compared against United States v. Nixon’s criminal subpoenas, which did involve the President, the civil discovery here militates against respondents’ position. The observation in Nixon that production of confidential information would not disrupt the functioning of the Executive Branch cannot be applied in a mechanistic fashion to civil litigation. In the criminal justice system, there are various constraints, albeit imperfect, to filter out insubstantial legal claims. The decision to prosecute a criminal case, for example, is made by a publicly accountable prosecutor subject to budgetary considerations and under an ethical obligation, not only to win and zealously to advocate for his client but also to serve the cause of justice. The rigors of the penal system are alsp mitigated by the responsible exercise of prosecuto-rial discretion. In contrast, there are no analogous checks in the civil discovery process here. Although under Federal Rule of Civil Procedure 11, sanctions are available, and private attorneys also owe an obligation of candor to the judicial tribunal, these safeguards have proved insufficient to discourage the filing of meritless claims against the Executive Branch. “In view of the visibility of” the Offices of the President and the Vice President and “the effect of [their] actions on countless people,” they are “easily identifiable target[s] for suits for civil damages.” Nixon v. Fitzgerald, supra, at 753.
Finally, the narrow subpoena orders in United States v. Nixon stand on an altogether different footing from the overly broad discovery requests approved by the District Court in this case. The criminal subpoenas in Nixon were required to satisfy exacting standards of “(1) relevancy; (2) admissibility; (3) specificity.” 418 U. S., at 700 (interpreting Fed. Rule Crim. Proc. 17(c)). They were “not intended to provide a means of discovery.” 418 U. S., at 698. The burden of showing these standards were met, moreover, fell on the party requesting the information. Id., at 699 (“[I]n order to require production prior to trial, the moving party must show [that the applicable standards are met]”). In Nixon, the Court addressed the issue of executive privilege only after having satisfied itself that the special prosecutor had surmounted these demanding requirements. Id., at 698 (“If we sustained this [Rule 17(c)] challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material”). The very specificity of the subpoena requests serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.
In contrast to Nixon's subpoena orders that “precisely identified” and “specific[ally]... enumerated” the relevant materials, id., at 688, and n. 5, the discovery requests here, as the panel majority acknowledged, ask for everything under the sky:
“1. All documents identifying or referring to any staff, personnel, contractors, consultants or employees of the Task Force.
“2. All documents establishing or referring to any Sub-Group.
“3. All documents identifying or referring to any staff, personnel, contractors, consultants or employees of any Sub-Group.
“4. All documents identifying or referring to any other persons participating in the preparation of the Report or in the activities of the Task Force or any Sub-Group.
“5. All documents concerning any communication relating to the activities of the Task Force, the activities of any Sub-Groups, or the preparation of the Report....
“6. All documents concerning any communication relating to the activities of the Task Force, the activities of Sub-Groups, or the preparation of the Report between any person... and [a list of agencies].” App. 220-221.
The preceding excerpt from respondents’ “First Request for Production of Documents,” id., at 215 (emphasis added), is only the beginning. Respondents’ “First Set of Interrogatories” are similarly unbounded in scope. Id., at 224. Givén the breadth of the discovery requests in this case compared to the narrow subpoena orders in United States v. Nixon, our precedent provides no support for the proposition that the Executive Branch “shall bear the burden” of invoking executive privilege with sufficient specificity and of making particularized objections. 334 F. 3d, at 1105. To be sure, Nixon held that the President cannot, through the assertion of a “broad [and] undifferentiated” need for confidentiality and the invocation of an “absolute, unqualified” executive privilege, withhold information in the face of subpoena orders. 418 U. S., at 706, 707. It did so, however, only after the party requesting the information — the special prosecutor — had satisfied his burden of showing the propriety of the requests. Here, as the Court of Appeals acknowledged, the discovery requests are anything but appropriate. They provide respondents all the disclosure to which they would be entitled in the event they prevail on the merits, and much more besides. In these circumstances, Nixon does not require -the Executive Branch to bear the onus of critiquing the unacceptable discovery requests line by line. Our precedents suggest just the opposite. See, e. g., Clinton v. Jones, 520 U. S. 681 (1997); id., at 705 (holding that the Judiciary may direct “appropriate process” to the Executive); Nixon v. Fitzgerald, 457 U. S., at 753.
The Government, however, did in fact object to the scope of discovery and asked the District Court to narrow it in some way. Its arguments were ignored. See App. 167, 181-183 (arguing “this case can be resolved far short of the wide-ranging inquiries plaintiffs have proposed” and suggesting alternatives to “limi[t]” discovery); id., at 232 (“Defendants object to the scope of plaintiffs’ discovery requests and to the undue burden imposed by them. The scope of plaintiffs’ requests is broader than that reasonably calculated to lead to admissible evidence”); id., at 232, n. 10 (“We state our general objections here for purposes of clarity for the record and to preclude any later argument that, by not including them here, those general objections have been waived”). In addition, the Government objected to the burden that would arise from the District Court’s insistence that the Vice President winnow the discovery orders by asserting specific claims of privilege and making more particular objections. Id., at 201 (Tr. of Status Hearing (Aug. 2, 2002)) (noting “concerns with disrupting the effective functioning of the presidency and the vice-presidency”); id., at-274 (“[C]ompliance with the order of the court imposes a burden on the Office of the Vice President. That is a real burden. If we had completed and done everything that Your Honor has asked us to do today that burden would be gone, but it would have been realized”). These arguments, too, were rejected. See id., at 327, 329 (Nov. 1, 2002, Order) (noting that the court had, “on numerous occasions,” rejected the Government’s assertion “that court orders requiring [it] to respond in any fashion to [the] discovery requests creates an ‘unconstitutional burden’ on the Executive Branch”).
Contrary to the
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
sc_jurisdiction | B | 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.
PAULUSSEN v. HERION
No. 85-88.
Argued March 5, 1986
Decided March 25, 1986
Esther L. Hornik argued the cause for appellant. With her on the brief were Angela L. Martinez and Donald J. Martin.
Joseph N. Onek argued the cause for appellee. On the brief was Neil H. Stein
Briefs of amici curiae urging reversal were filed for the Children’s Defense Fund et al. by Constance Jean Chatwood, Jane Howard-Martin, Marian Wright Edelman, James D. Weill, and Judith L. Lichtman; and for the Neighborhood Legal Services Association by Daniel L. Haller and Eileen D. Yacknin.
Per Curiam.
On February 17, 1980, appellant Barbara Paulussen filed a paternity and child support petition in a Bucks County, Pennsylvania, court on behalf of her daughter, who was then seven years old. The petition alleged that the daughter had been born out of wedlock, that appellee George Herion was her natural father, and that he had ceased making contributions to her support in April 1975. Appellee offered as a defense the time bar of the Pennsylvania statute of limitations, which at the time required that paternity actions be commenced within six years of the child’s birth or within two years of the putative father’s last voluntary support contribution or written acknowledgment of paternity. 42 Pa. Cons. Stat. Ann., § 6704(e) (Purdon 1982) (repealed). The defense was sustained against appellant’s contention that the statute violated the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. The Superior Court affirmed, 334 Pa. Super. 585, 483 A. 2d 892 (1985), and the Supreme Court of Pennsylvania denied discretionary review. Appellant sought appeal in this Court, and, on October 15, 1985, we noted probable jurisdiction. 474 U. S. 899 (1985).
On October 30, 1985, Pennsylvania enacted 1985 Pa. Laws, Act No. 66, to be codified as 23 Pa. Cons. Stat. Ann. § 4343(b), which provides that a child born out of wedlock may commence a paternity action, at any time within 18 years of birth. Appellee now concedes that he is subject to § 4343(b) and that, upon a showing of paternity, he would be liable for child support payments from the date paternity was established. Brief for Appellee 5. He contends, however, that, even on such a showing, he would not be liable for payments dating back to the date the initial petition was filed in 1980.
Our examination of Pennsylvania law leaves us uncertain as to the legal consequences of the enactment of the new 18-year statute of limitations. If, however, Pennsylvania were to interpret § 4343(b) to require support payments dating back to the filing of the original petition, the constitutionality of the 6-year statute of limitations would be irrelevant. Because Pennsylvania should have an opportunity in the first instance to resolve this issue of state law, and because we are reluctant to address a federal constitutional question until it is clearly necessary to do so, we vacate the judgment below and remand for further consideration in light of the intervening change in state law.
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_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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TYPOGRAPHICAL UNION NO. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, Respondents.
No. 14246.
United States Court of Appeals Sixth Circuit.
June 4, 1960.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Thomas A. Roumell, 7th Regional Director, N.L.R.B., Detroit, Mich., for petitioner.
Zwerdling & Zwerdling, Detroit, Mich., Van Arkel & Kaiser, Washington, D. C., for respondent.
PER CURIAM.
This cause came on to be heard upon the petition of the National Labor Relations Board for the enforcement of a certain order issued by it against Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns on April 4, 1960, in a proceeding before the said Board numbered 7-CC-106, 7-CC-112, 7-CC-113, 7-CC-114 and 7-CB-623; upon the transcript of the record in said proceeding, certified and filed in this Court, and upon a stipulation providing for the entry of a consent decree of this Court enforcing the order.
On consideration whereof, it is ordered, adjudged and decreed by the United States Court of Appeals for the Sixth Circuit, that the said order of the National Labor Relations Board be, and the same is hereby enforced; and that Typographical Union No. 18; International Typographical Union and its affiliate, Detroit Mailers Union Local No. 40; International Typographical Union and its affiliates, Detroit Mailers Union Local No. 40 and Detroit Typographical Union No. 18, their officers, agents, successors and assigns abide by and perform the directions of the Board in said order contained.
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_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.
VIRGINIA v. AMERICAN BOOKSELLERS ASSOCIATION, INC., et al.
No. 86-1034.
Argued November 4, 1987
Decided January 25, 1988
Brennan, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 398.
Richard B. Smith, Assistant Attorney General of Virginia, argued the cause for appellant. With him on the briefs were Mary Sue Terry, Attorney General, and Mark R. Davis, Assistant Attorney General.
Paul M. Bator, argued the cause for appellees. With him on the brief were Kenneth S. Getter, Mark I. Levy, Michael A. Bamberger, David C. Burger, Maxwell Lillienstein, and Burton Joseph
Briefs of amici curiae urging reversal were filed for the city of Minneapolis by Robert J. Alfton and David M. Gross; for the Institute for Youth Advocacy by Gregory A. Loken; and for the National Legal Foundation by Paul S. McConnell and Robert K. Skolrood.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Charles S. Sims, John A. Powell, and Steven R. Shapiro; for the Freedom to Read Foundation by Bruce J. Ennis and David W. Ogden; and for Jean M. Auel et al. by R. Bruce Rich.
Justice Brennan
delivered the opinion of the Court.
The courts below declared unconstitutional the following Virginia statute: “It shall be unlawful for any person ... to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse” visual or written material that “depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles.” Va. Code § 18.2-391(a) (Supp. 1987). The unique factual and procedural setting of this case leads us to conclude that an authoritative construction of the Virginia statute by the Virginia Supreme Court would substantially aid our review of this constitutional holding, and might well determine the case entirely. Accordingly, we certify two questions to the Virginia Supreme Court.
I — I
In 1968, this Court held consitutional a state prohibition on the sale to those under 17 of materials deemed “harmful to juveniles.” Ginsberg v. New York, 390 U. S. 629, 643 (1968). The next year, Virginia enacted a similar statute. The Virginia Code’s current definition of “harmful to juveniles” is a modification of the Miller definition of obscenity, adapted for juveniles. Miller v. California, 413 U. S. 15, 24 (1973). The statute reads in relevant part:
“‘Harmful to Juveniles’ means that quality of any description or presentation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominately appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.” Va. Code §18.2-390(6) (1982).
In 1985, Virginia amended its law to make it also a crime “to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse” the aforementioned materials, even if these materials are not actually sold to any juvenile.
Plaintiffs made a facial challenge to the 1985 amendment in the United States District Court for the Eastern District of Virginia. They asserted that the 1985 amendment was fundamentally different from the prior statute in that it burdens the First Amendment rights of adults, as to whom at least some of the covered works are not obscene. They argued that, while the sale provision does not affect adult access to covered works in any significant way, as the Court held in Ginsberg, swpra, at 634-635, the 1985 amendment, governing the display of such works to minors, substantially restricts access to adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply. Specifically, they argued, compliance requires a bookseller to: (1) create an “adults only” section of the store; (2) place the covered works behind the counter (which would require a bookbuyer to request specially a work); (3) decline to carry the materials in question; or (4) bar juveniles from the store. Plaintiffs maintained that because bookbuyers generally make their selections by browsing through displayed books, and because adults would be reluctant to enter an “adults only” store or section of a store, the statute effectively restricts the entire population’s access to books that fall within its purview. In effect, argued plaintiffs, the law reduces the adult population to reading and viewing only works suitable for children, something this Court has repeatedly held is prohibited by the First Amendment. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 73-74 (1983); Butler v. Michigan, 352 U. S. 380, 383-384 (1957). Consequently, they asserted, the law must undergo First Amendment scrutiny. Applying that scrutiny, plaintiffs reasoned that the law is unconstitutional because the State’s interest in restricting the display of these works is insubstantial and the law does not further this interest by the least restrictive means available. In support of that proposition, plaintiffs argued that the statute criminalizes the mere display of covered works, even if there is no evidence that a juvenile would actually examine and peruse them.
Plaintiffs also maintained that the law is overbroad in that it restricts access by mature juveniles to works that are “harmful” only to younger children. Finally, the statute is purported to be unconstitutionally vague, in part because it is allegedly impossible to determine what standard should be used in deciding whether a work is appropriate for juveniles of different ages and levels of maturity.
Plaintiffs brought suit under 42 U. S. C. § 1983 against the Arlington County Chief of Police. Pursuant to 28 U. S. C. § 2403(b), the Virginia Attorney General intervened. The defendants argued that the 1985 amendment is a necessary corollary to the prior sales restriction, as one without the other is useless. Defendants also challenged plaintiffs’ reading of the statute’s reach, arguing that it extends only to “borderline obscenity.” Further, compliance with the statute may be achieved, they maintained, by placing distinctive tags on the restricted materials, or placing them behind “blinder racks. ” Therefore, they asserted the statute has no significant “spillover” effect on adults, and any effect there might be is permissible under a “time, place, or manner” test. Even under strict First Amendment scrutiny, they argued, the 1985 amendment is constitutional due to the State’s compelling interest in protecting juveniles and the lack of a less restrictive alternative to achieve effectively that interest.
Plaintiffs moved for a preliminary injunction, and defendants moved to dismiss or abstain. At the preliminary injunction hearing, which became a trial on the merits, plaintiffs called three witnesses: two booksellers (the owners of the two plaintiff bookstores) and the general counsel of plaintiff American Booksellers Association. The two booksellers testified that their stores were typical in most respects of non-“adults only” general-subject bookstores in the State. The booksellers introduced as exhibits a total of 16 books that they believed were examples of books the amended statute covered, and testified that the law might apply to as much as one half of their inventory. The exhibits were extremely diverse, including classic literature, health texts, poetry, photography, and potboiler novels. Finally, all three witnesses testified as to the steps they believed a bookseller would have to take to conform to the statute, repeating the four options discussed above. On cross-examination, defendants elicited testimony from the bookstore owners that they were unfamiliar with the portion of the law defining “harmful to juveniles.” Therefore, defendants submitted that the plaintiffs’ witnesses were testifying under a mistaken impression as to the statute’s coverage.
The trial court denied defendant’s motion to dismiss the case and declined to abstain. On the merits, it held as a factual matter that the statute would cover between 5 and 25 percent of a typical bookseller’s inventory. Further, the court agreed with plaintiffs as to the alternatives available to comply with the law, rejecting defendants’ suggestion that a bookseller could avoid criminal prosecution by merely tagging the materials or placing them behind “blinder” racks. The court reasoned from this that the 1985 amendment placed significant burdens on adult First Amendment rights by restricting adult access to nonobscene works. It concluded that the 1985 amendment was overbroad, and permanently enjoined its enforcement.
The Court of Appeals for the Fourth Circuit affirmed. 802 F. 2d 691 (1986). While critical of the evidentiary basis for the determination, the court neither accepted nor rejected expressly the District Court’s finding as to the scope of the statute. Id., at 696. At the same time, however, the court stated that “[i]t cannot be gainsaid” that book retailers would face significant difficulty attempting to comply with the statute. The Court of Appeals, like the District Court, adopted plaintiffs’ theory as to the acceptable modes of compliance with the statute and rejected the Attorney General’s alternatives, reasoning that tagging the materials or placing them behind blinder racks would not, as a practical matter, deter juveniles from examining and perusing the works. The court questioned whether treating all juveniles identically was constitutional, but did not determine the issue.
The State appealed to this Court, alleging a conflict among the Courts of Appeals. See Upper Midwest Booksellers Assn. v. Minneapolis, 780 F. 2d 1389 (CA8 1985) (holding a similar ordinance constitutional), and M. S. News Co. v. Casado, 721 F. 2d 1281 (CA10 1983) (same). We noted probable jurisdiction. 479 U. S. 1082 (1987).
1 — I I — I
We first address plaintiffs’ standing to bring suit. The State argued before the District Court that plaintiffs lacked standing to bring a pre-enforcement facial challenge, alleging that plaintiffs did not suffer sufficient harm, and what harm they did suffer was economic, not speech related. Further, the State argued that plaintiffs’ challenge was premature, having been made before the statute became effective.
To bring a cause of action in federal court requires that plaintiffs establish at an irreducible minimum an injury in fact; that is, there must be some “ ‘threatened or actual injury resulting from the putatively illegal action ....’” Warth v. Seldin, 422 U. S. 490, 499 (1975), quoting Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973); see also Association of Data Processing Service Organizations v. Camp, 397 U. S. 150, 151-154 (1970). That requirement is met here, as the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. See Craig v. Boren, 429 U. S. 190, 194 (1976); Doe v. Bolton, 410 U. S. 179, 188 (1973).
Even if an injury in fact is demonstrated, the usual rule is that a party may assert only a violation of its own rights. However, in the First Amendment context, “ ‘[ljitigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Secretary of State of Maryland v. J. H. Munson Co., 467 U. S. 947, 956-957 (1984), quoting Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973). This exception applies here, as plaintiffs have alleged an infringement of the First Amendment rights of bookbuyers.
We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise. We conclude that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them. Further, the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.
I — I I — i h-l
We have concluded that we should not attempt to decide the constitutional issues presented without first having the Virginia Supreme Court’s interpretation of key provisions of the statute. Several factors combine in a unique way to counsel that course.
At oral argument the State’s attorney conceded that if the statute is read as plaintiffs contend, not only is it unconstitutional but its enforcement should, as a normative matter, be enjoined. Indeed, he seemingly conceded that if any of the books introduced as plaintiffs’ exhibits below is covered by the statute, plaintiffs should prevail. However, the State argues that the statute’s coverage is much narrower than plaintiffs allege or the courts below found. It contends that the statute covers only a very few “borderline” obscene works, and none of the exhibits introduced by plaintiffs.
There was testimony below that if the coverage of the statute is as narrow as the State argues, it would reach less than a single shelf of a typical bookseller’s wares. App. 222. If that is true, methods of compliance exist that are substantially less burdensome than those discussed by the lower courts. For example, as is currently done in one of the plaintiff bookstores, a single shelf containing restricted books can be located within sight of the bookseller. If a juvenile examines or peruses the materials, an employee can prevent his continuing to do so. Id., at 207. This is not to say that the law might not still raise substantial constitutional questions. However, the nature of the First Amendment “spillover” burden to adults would be dramatically altered.
Plaintiffs, pointing to the lower courts’ interpretation of the law, paint a strikingly different picture. They see the statute as a broad enactment, potentially applying to a huge number of works. This is not a law, they say, covering only “borderline obscenity,” but rather a device expunging from display up to a quarter of the books available to juveniles and, as a practical matter, to adults. The courts below similarly regarded the coverage; for a law, like Virginia’s, that applies to up to 25 percent of a typicalbookstore’s inventory (as the District Court held) or that would confront booksellers with a “substantial problem” of compliance (as the Court of Appeals stated) must extend beyond only the nearly obscene; This broader reading of the statute would raise correspondingly greater First Amendment questions.
This Court rarely reviews a construction of state law agreed upon by the two lower federal courts. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 499-500 (1985). However, this case presents the rare situation in which we cannot rely on the construction and findings below. There is no reliable evidence in the record supporting the District Court’s holding that the statute reaches up to 25 percent of a typical bookstore, since the two bookstore owners who testified were unfamiliar with the statutory definition of “harmful to minors.” We cannot tell whether the court’s finding was based on an independent determination by the District Judge, as plaintiffs suggest, or the flawed testimony. But even if the holding were based on the former, we cannot discern the evidentiary basis for it. Neither can we rely on the Court of Appeals’ construction. That court criticized the basis of the District Court’s holding, but gave no alternative basis for its own determination. Given this history we are reluctant to adopt without question the lower courts’ interpretation of state law. At the same time, as the Attorney General does not bind the state courts or local law enforcement authorities, we are unable to accept her interpretation of the law as authoritative.
Under these unusual circumstances, where it appears the State will decline to defend a statute if it is read one way and where the nature and substance of plaintiffs’ constitutional challenge is drastically altered if the statute is read another way, it is essential that we have the benefit of the law’s authoritative construction from the Virginia Supreme Court. Certification, in contrast to the more cumbersome and (in this context) problematic abstention doctrine, is a method by which we may expeditiously obtain that construction. See Bellotti v. Baird, 428 U. S. 132 (1976) (remanding with instructions to certify questions pertaining to construction of a state statute that was susceptible to multiple interpretations, one of which would avoid or substantially modify a federal constitutional challenge). Consequently, we shall resort to its certification Rule 5:42 to ask the Virginia Supreme Court whether any of the books introduced by plaintiffs as exhibits below fall within the scope of the amended statute, and how such decisions should take into account juveniles’ differing ages and levels of maturity.
We will also certify a second question. At oral argument, in response to a question from the bench, the State’s attorney declared that a bookseller will not be subject to criminal prosecution if, as a matter of store policy, the bookseller prevents a juvenile observed reviewing covered works from continuing to do so, even if the restricted materials are not segregated. If this is what the statute means, the burden to the bookseller, and the adult bookbuying public, is significantly less than that feared and asserted by plaintiffs. (Even if the statute means that the bookseller is required to announce or manifest the store’s policy, perhaps by appropriate signs in the store or other reasonable measures, the burdens might be less than under plaintiffs’ construction.)
It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be “readily susceptible” to a narrowing construction that would make it constitutional, it will be upheld. Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975); Broadrick v. Oklahoma, 413 U. S. 601 (1973). The key to application of this principle is that the statute must be “readily susceptible” to the limitation; we will not rewrite a state law to conform it to constitutional requirements.
It is not necessary in this case, however, to decide whether the statute is readily susceptible of the Attorney General’s current interpretation. The situation we confront is unusual. Another question is already being certified, enforcement of the statute will remain enjoined throughout the certification process, and no state court has ever had the opportunity to interpret the pertinent statutory language. In these circumstances, there is some advantage and no cost, either in terms of the First Amendment chilling effect or unnecessary delay, to certifying a proffered narrowing construction that is neither inevitable nor impossible. Thus, we certify this second question.
I — I <
Pursuant to Rule 5:42 of the Virginia Supreme Court, we respectfully certify to that court the following questions:
1. Does the phrase “harmful to juveniles” as used in Virginia Code §§ 18.2-390 and 18.2-391 (1982 and Supp. 1987), properly construed, encompass any of the books introduced as plaintiffs’ exhibits below, and what general standard should be used to determine the statute’s reach in light of juveniles’ differing ages and levels of maturity?
2. What meaning is to be given to the provision of Virginia Code § 18.2-391(a) (Supp. 1987) making it unlawful “to knowingly display for commerical purpose in a manner whereby juveniles may examine or peruse” certain materials? Specifically, is the provision complied with by a plaintiff bookseller who has a policy of not permitting juveniles to examine and peruse materials covered by the statute and who prohibits such conduct when observed, but otherwise takes no action regarding the display of restricted materials? If not, would the statute be complied with if the store’s policy were announced or otherwise manifested to the public?
It is so ordered.
Rule 5:42(a) of the Rules of the Virginia Supreme Court states:
“Power to Answer. —The [Virginia] Supreme Court may in its discretion answer questions of law certified to it by the Supreme Court of the United States, a United States court of appeals for any circuit, a United States district court, or the highest appellate court of any state or the District of Columbia. Such answer may be furnished, when requested by the certifying court, if a question of Virginia law is determinative in any proceeding pending before the certifying court and it appears there is no controlling precedent on point in the decisions of the Supreme Court or the Court of Appeals of Virginia.”
This opinion, along with a statement to be appended by the Clerk of the Court setting out the names, addresses, and telephone numbers of counsel for the parties and the names of each of the parties involved, shall constitute the certification order. Va. Sup. Ct. Rule 5:42(d). The Clerk of the Court shall also transmit to the Virginia Supreme Court the record in this case, including plaintiffs’ exhibits and the trial transcript. Appellant shall bear the fees and costs on certification in the Virginia Supreme Court. Va. Sup. Ct. Rule 5:42(g). Such fees and costs shall be taxable items pursuant to this Court’s Rule 50. Virginia’s certification procedure became effective on April 1, 1987, and hence was unavailable to the courts below.
The law, with the 1985 amendment italicized, reads as follows:
“Definitions. — As used in this article:
“(1) ‘Juvenile’ means a person less than eighteen years of age.
[Subsections (2-5) define “Nudity,” “Sexual conduct,” “Sexual excitement,” and “Sadomasochistic abuse,” respectively.]
“(6) ‘Harmful to Juveniles’ means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominately appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.
“(7) ‘Knowingly’ means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both (a) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (b) the age of the juvenile, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.” Va. Code § 18.2-390 (1982).
Va. Code § 18.2-391 (Supp. 1987) reads:
“Unlawful acts, — (a) It shall be unlawful for any person knowingly to sell or loan to a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine or peruse:
“(1) Any picture, photography, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
“(2) Any book, pamphlet, magazine, printed matter however reproduced or sound recording which contains any matter enumerated in subdivision (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which taken as a whole, is harmful to juveniles.
“(e) Violation of any provision hereof shall constitute a Class 1 misdemeanor.”
Plaintiffs below included a number of organizations with memberships consisting of national and Virginia booksellers, two Virginia bookstores, and a Virginia adult and her juvenile child. The District Court dismissed the parent and child for failure to allege potential prosecution under the 1985 amendment, a potential economic injury flowing therefrom, or “anything more than an abstract interest in the availability of reading materials in bookstores, an interest which is no different from the interests of all other local citizens who patronize bookstores.” American Booksellers Assn. v. Strobel, 617 F. Supp. 699, 704 (1985). The remaining plaintiffs are the appellees here.
There are a number of different types of booksellers in Virginia. Some are traditional bookstore owners. Others include, for example, grocery store owners, drugstore owners, and airport convenience store owners who have one or more book or magazine racks. The ability of these diverse types of booksellers to utilize the differing methods of compliance varies.
Plaintiffs argued that these problems do not arise in the context of the original statute, which regulates only the sale of certain materials. According to plaintiffs and the Court of Appeals, at the point of sale a bookseller can make an individualized determination as to the suitability of a specific item for a specific child. 802 F. 2d 691, 695, n. 7 (CA4 1986).
The complaint also alleged a violation of plaintiffs’ own First Amendment right to display the restricted works, but that claim was not passed on below and is not pressed here.
The term “State’s attorney” refers to Mr. Smith, the Assistant Attorney General who argued the case.
After noting that plaintiffs have asserted that the statute covers the broad range of works represented by their exhibits below, the State’s attorney said:
“If that range is correct, if they are correct that this amendment involves that material, then we lose the ease, and I submit to the Court that we should, lose the ease, because the Commonwealth of Virginia does not desire to restrict in any way, directly or indirectly, that type of material.
“I will wager this case on one exhibit, Plaintiff’s Exhibit Number 4, The Penguin Book of Love Poetry. If that book falls within this statute, then we concede the case. You don’t have to look at all of them. Just look at that one book. Or if you want to look at all of them, the same thing goes for all of them . . . .” Tr. of Oral Arg. 4, 19, (emphasis added).
We note that in her brief to the Court of Appeals, the Attorney General conceded, or appeared to concede, that one of the exhibits, Hollywood Wives, would be covered. Opening Brief for Appellant Commonwealth of Virginia in Nos. 85-1961(L), 85-1999, pp. 27-28. At oral argument before this Court, that apparent concession was disclaimed. Tr. of Oral Arg. 5.
The following colloquy occurred at oral argument:
“QUESTION: Mr. Smith, suppose a bookseller does not segregate books. Would he be able to comply with the Virginia statute by simply saying, whenever I see a juvenile, a person who looks to me like a juvenile, browsing in a book which is a book that I ought to know falls within this statute, I stop that juvenile and ask him to leave the store. That is my store policy.
“Would that be enough to comply with the statute?
“MR. SMITH: Yes sir.
“QUESTION: ... I am talking about the language ‘display for a commercial purpose in a manner whereby juveniles may examine and peruse.’ ‘May.’
“MR. SMITH: Because I think-
“QUESTION: ‘May’ means it is possible for them to do so or they are permitted to do so.
“MR. SMITH: This Court had a case which I have cited in my brief called the Foreign Products Case, and that ease said that when used in a statute as this ‘May’ is used, it can mean might or it can mean reasonable certainty or it can mean actual tendency under Virginia law, since it has to be strictly construed against the Commonwealth, it has to be what you have suggested, and it would qualify.” Tr. of Oral Arg. 51-52 (emphasis added).
The constitutional issues relating to the display of visual materials (Va. Code § 18.2-391(a)(l) (Supp. 1987)) are potentially different from those relating to the display of written works (§ 18.2-391(a)(2) (Supp. 1987)). However, we believe that answers to the certified questions will substantially aid us in resolving both inquiries.
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_appel1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
TRUSTEES OF THE CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, Plaintiff-Appellee, v. RENTAR INDUSTRIES, INCORPORATED, Ratner Enterprises, Incorporated and Rentar Trailer and Container, et al., Defendants-Appellants.
Nos. 90-3214, 90-3473.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 23, 1991.
Decided Dec. 20, 1991.
Joseph M. Bums, David S. Allen (argued), Karen I. Engelhardt, Jacobs, Burns, Sugarman & Orlove, Vincent D. Pinelli, Edward J. Burke, Mary P. Burns, Burke, Smith & Williams, Chicago, Ill., for plaintiff-appellee.
Arnold L. Burke (argued), Siegan, Barba-koff & Gomberg, David R. Kugler, Daniel Kuznetsky, Kugler, Deleo & D’Arco, Chicago, Ill., for defendants-appellants.
Before COFFEY and FLAUM, Circuit Judges, and ENGEL, Senior Circuit Judge.
Honorable Albert J. Engel, Senior Circuit Judge for the United States Court of Appeals for the Sixth Circuit, sitting by designation.
ENGEL, Senior Circuit Judge.
Rentar appeals from denial of its motion for a hearing to demonstrate irreparable harm resulting from an order compelling interim payment of ERISA withdrawal liability. 29 U.S.C. § 1399(c)(2). The sole issue before us is whether the magistrate had discretion to grant relief from the seemingly inflexible requirement under 29 U.S.C. § 1399(c)(2) that an allegedly withdrawing employer make interim payments pending arbitration on the issue of its liability. While the Seventh Circuit has found a narrowly limited discretion to intervene, we hold the court did not abuse its discretion here because the employer failed to make any colorable initial showing of clear right or irreparable injury. We therefore affirm.
I. Background
Couzens was an affiliate and/or wholly owned subsidiary of Rentar, Inc. On December 29, 1982, Rentar, Inc. sold ninety percent of Couzens’ stock to Levitt. On February 7, 1983, Couzens filed an involuntary petition in bankruptcy. Prior to this Couzens had been an employer contributing to the Chicago Truck Drivers, Helpers and Warehouse Workers Union Pension Fund (“the Fund”). See 29 U.S.C. § 1002. On January 21, 1983, Couzens had stopped contributing to the Fund, and when it ceased operations it effectuated a complete withdrawal from the Fund. See 29 U.S.C. § 1383.
When an employer withdraws from a multiemployer pension plan, the employer becomes immediately liable for its proportionate share of unfunded vested benefits. 29 U.S.C. § 1381. Congress designed this requirement in order to establish greater financial stability for these plans. H.Rep. No. 869, Part I, 96th Cong., 2d Sess. 51-54 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News, 2918, 2919-2922. The Employee Retirement Income Security Act (ERISA) further provides that upon withdrawal, a multiemployer pension fund is to determine the employer’s withdrawal liability, notify it of the amount, and then collect the money. 29 U.S.C. § 1382. The Fund calculated Couzens’ withdrawal liability to be $1,082,517, and notified it of the amount.
Collection of the funds proved to be a bit more difficult; Couzens’ insolvency forced the Fund to seek other less direct avenues for payment. The Fund decided to look to the previous owner of Couzens, Rentar, Inc. and its associated companies to satisfy the liability. The Fund attempted to have the sale of Couzens disregarded for purposes of determining and collecting withdrawal liability by alleging that the principal purpose of the December 1982 sale of Couzens by Rentar, Inc. was “to evade or avoid [withdrawal] liability.” 29 U.S.C. § 1392(c).
Understandably, the Rentar defendants (“Rentar”) disputed the Fund’s view of their liability. In November 1989, the magistrate ordered Rentar and the Fund to arbitrate their differences. See 29 U.S.C. § 1401. The Fund then sought interim payments of withdrawal liability from Ren-tar. The 1980 Multiemployer Pension Plan Amendments Act (MPPAA), to further guarantee fund stability, requires withdrawal payments be made pending arbitration:
Withdrawal liability shall be payable in accordance with the schedule set forth by the plan sponsor ... no later than 60 days after the date of the demand notwithstanding any request for review or appeal of determinations of the amount of such liability or of the schedule.
29 U.S.C. § 1399(c)(2). The MPPAA also provides:
Payments shall be made by an employer in accordance with the determinations made under this part until the arbitrator issues a final decision with respect to the determination submitted for arbitration
29 U.S.C. § 1401(d).
Despite this inflexible language, in limited situations courts have been held to have some discretion in ordering payments. See Robbins v. McNicholas Transportation Co., 819 F.2d 682 (7th Cir.1987). McNicho-las provides for a review by the court of the employer’s likelihood of success and the irreparable harm to be suffered due to payment. Rentar sought to present evidence regarding the composition of the control group and the harsh economic effect of the order. Rentar appeals from the order compelling interim payment, and denial of its motion seeking a hearing to present more evidence.
II. Jurisdiction
Before our recent decision in Trustees of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund v. Central Transport, Inc., 935 F.2d 114 (7th Cir.1991), orders compelling interim withdrawal payments were treated as orders granting or denying injunctions under 28 U.S.C. § 1292(a)(1). See McNicholas, 819 F.2d at 685. As such, the orders could be appealed only if they “might have a ‘serious, perhaps irreparable consequence.’ ” Id., quoting I.A.M. Nat’l. Pension Fund v. Cooper Indus., 789 F.2d 21, 24 (D.C.Cir.1986). To “simplify the subject,” Central Transport held that these orders are not injunctions, but rather are money judgments, final and appealable under 28 U.S.C. § 1291. Central Transport, 935 F.2d at 117.
The Fund challenges the application of the Central Transport rule to the order in this case. While the order in Central Transport compelled payment of the accrued liability and ordered the employer to make future payments as they came due, the Rentar order did not grant prospective relief but ordered payment only of the amount currently due and owing. Because they did not get all of the relief they were seeking and could go back to court to force future payments, the Fund contends that the order could not be considered final. We disagree because this argument places too much emphasis on the scope of the relief granted. Central Transport held that “the terminating order of any suit seeking ‘interim payments’ under § 1399(c)(2) is a final decision, appealable under 28 U.S.C. § 1291.” Central Transport, 935 F.2d at 117. The failure to include prospective relief does not make the order any less final.
III. Requirement of a Hearing to Show Irreparable Harm
Rentar claims the district court had to establish “some procedure” by which an allegedly withdrawing employer could demonstrate the irreparable harm it would suffer as a result of the court’s order compelling it to make interim payments. Originally, Rentar sought a hearing, but has since modified the request to the broader form outlined above. For support Rentar relies upon McNicholas.
In McNicholas the employer appealed from an order compelling interim payments, arguing that making the payments would result in “severe financial hardship and essentially preclude its resumption of operations.” McNicholas, 819 F.2d at 685. It produced figures showing a current annual income barely exceeding the required monthly payments. Under these circumstances the court ruled, “where the trustees bring an action to compel payment pending arbitration, the court should consider the probability of the employer’s success in defeating liability before the arbitrator and the impact of the demanded interim payments on the employer and his business” when exercising its discretion over the issuance of the order compelling payments. Id.
In Central Transport we also addressed the question of the court’s discretion to order interim payments:
McNicholas is at most a recognition that if the fund’s claim is frivolous — if the arbitrator is almost certain to rule for the employer — then the plan is engaged in a ploy that a court may defeat.... Having assured itself that the plan’s claim is legitimate, however, the court should order the making of interim payments and leave the rest to the arbitrator.
Central Transport, 935 F.2d 114, 119 (7th Cir.1991). We hold here that irreparable harm becomes important only if the employer makes an affirmative showing that the pension fund lacks a colorable claim. This standard is compatible, we believe, with the due process interests of the employer and with those of the statutory scheme.
Rentar offers two reasons why the Fund’s case is frivolous. First, the “Rentar defendants were not a parent company or controlled group of Couzens at the time of its alleged withdrawal.” Rentar’s continued reliance on this as a defense ignores the nature of the Fund’s claim. Section 1392 allows a pension fund to reach even companies who did not own or control a company at the time of withdrawal. Second, “[c]omposition of Rentar group should be determined at hearing or by other presentation of evidence of its composition.” Rentar offers no support for this assertion in its briefs, choosing instead to focus on the irreparable harm issue.
Even assuming these two claims would be enough to warrant a determination that Rentar might succeed before the arbitrator, Rentar has offered no evidence whatever to support its assertion of irreparable harm. Rentar has submitted no affidavit or balance sheet to the court. Nor does it argue that due process requires a hearing, but merely asserts its view that the request was “not out of line.” While this may be true, it does not mean that the district court was required to grant a hearing or “other procedure” when no issue of fact existed. It should have come as no surprise to Rentar that without the production of at least some evidence to raise a factual question, the district court was under no obligation to hold a hearing on the question or to establish some other procedure to receive evidence.
For these reasons, the decision below is Affirmed.
. 29 U.S.C. § 1392(c) provides: "If the principal purpose of any transaction is to evade or avoid [withdrawal] liability, this part shall be applied (and liability shall be determined and collected) without regard to such transaction.” The premise of this section is that the defendant did not actually own or control the employer at the time of its withdrawal.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
sc_petitioner | 055 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
JACKSON v. VIRGINIA et al.
No. 78-5283.
Argued March 21, 1979
Decided June 28, 1979
Stewart, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Blacicmun, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Burger, C. J., and Rehnquist, J., joined, post, p. 326. Powell, J., took no part in the consideration or decision of the case.
Carolyn J. Colville, by appointment of the Court, 439 U. S. 1064, argued the cause pro hac vice and filed briefs for petitioner.
Marshall Coleman, Attorney General of Virginia, argued the cause for respondents. With him on the brief was Linwood T. Wells, Assistant Attorney General.
Briefs of amici curiae urging affirmance were filed by George Deuk-mejian, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Eddie T. Keller, Willard F. Jones, and Jane K. Fischer, Deputy Attorneys General, for the State of California; by Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, John C. Walden, Senior Assistant Attorney General, and Susan V. Boleyn, Assistant Attorney General, for the State of Georgia; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas L. Casey, Assistant Attorney General, for the State of Michigan; and for their respective States by Theodore L. Sendak, Attorney General, David A. Arthur, Deputy Attorney General, and Donald P. Bogará, of Indiana, Robert B. Hansen, Attorney General of Utah, Edward G. Biester, Jr., Attorney General of Pennsylvania, Paul L. Douglas, Attorney General of Nebraska, and Chauncey H. Browning, Attorney General of West Virginia.
Mr. Justice Stewart
delivered the opinion of the Court.
The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship, 397 U. S. 358. The question in this case is what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence.
I
The petitioner was convicted after a bench trial in the Circuit Court of Chesterfield Count y, Va., of the first-degree murder of a woman named Mary Houston Cole. Under Virginia law, murder is defined as “the unlawful killing of another with malice aforethought.” Stapleton v. Commonwealth, 123 Va. 825, 96 S. E. 801. Premeditation, or specific intent to kill, distinguishes murder in the first from murder in the second degree; proof of this element is essential to conviction of the former offense, and the burden of proving it clearly rests with the prosecution. Shiflett v. Commonwealth, 143 Va. 609, 130 S. E. 777; Jefferson v. Commonwealth, 214 Va. 432, 201 S. E. 2d 749.
That the petitioner had shot and killed Mrs. Cole was not in dispute at the trial. The State's evidence established that she had been a member of the staff at the local county jail, that she had befriended him while he was imprisoned there on a disorderly conduct charge, and that when he was released she had arranged for him to live in the home of her son and daughter-in-law. Testimony by her relatives indicated that on the day of the killing the petitioner had been drinking and had spent a great deal of time shooting at targets with his revolver. Late in the afternoon, according to their testimony, he had unsuccessfully attempted to talk the victim into driving him to North Carolina. She did drive the petitioner to a local diner. There the two were observed by several police officers, who testified that both the petitioner and the victim had been drinking. The two were observed by a deputy sheriff as they were preparing to leave the diner in her car. The petitioner was then in possession of his revolver, and the sheriff also observed a kitchen knife in the automobile. The sheriff testified that he had offered to keep the revolver until the petitioner sobered up, but that the latter had indicated that this would be unnecessary since he and the victim were about to engage in sexual activity.
Her body was found in a secluded church parking lot a day and a half later, naked from the waist down, her slacks beneath her body. Uncontradicted medical and expert evidence established that she had been shot twice at close range with the petitioner’s gun. She appeared not to have been sexually molested. Six cartridge cases identified as having been fired from the petitioner’s gun were found near the body.
After shooting Mrs. Cole, the petitioner drove her car to North Carolina, where, after a short trip to Florida, he was arrested several days later. In a postarrest statement, introduced in evidence by the prosecution, the petitioner admitted that he had shot the victim. He contended, however, that the shooting had been accidental. When asked to describe his condition at the time of the shooting, he indicated that he had not been drunk, but had been “pretty high.” His story was that the victim had attacked him with a knife when he resisted her sexual advances. He said that he had defended himself by firing a number of warning shots into the ground, and had then reloaded his revolver. The victim, he said, then attempted to take the gun from him, and the gun “went off" in the ensuing struggle. He said that he fled without seeking help for the victim because he was afraid. At the trial, his position was that he had acted in self-defense. Alternatively, he claimed that in any event the State’s own evidence showed that he had been too intoxicated to form the specific intent necessary under Virginia law to sustain a conviction of murder in the first degree.
The trial judge, declaring himself convinced beyond a reasonable doubt that the petitioner had committed first-degree murder, found him guilty of that offense. The petitioner’s motion to set aside the judgment as contrary to the evidence was denied, and he was sentenced to serve a term of 30 years in the Virginia state penitentiary. A petition for writ of error to the Virginia Supreme Court on the ground that the evidence was insufficient to support the conviction was denied.
The petitioner then commenced this habeas corpus proceeding in the United States District Court for the Eastern District of Virginia, raising the same basic claim. Applying the “no evidence” criterion of Thompson v. Louisville, 362 U. S. 199, the District Court found the record devoid of evidence of premeditation and granted the writ. The Court of Appeals for the Fourth Circuit reversed the judgment. The court noted that a dissent from the denial of certiorari in a case in this Court had exposed the question whether the constitutional rule of In re Winship, 397 U. S. 358, might compel a new criterion by which the validity of a state criminal conviction must be tested in a federal habeas corpus proceeding. See Freeman v. Zahradnick, 429 U. S. 1111 (dissent from denial of certiorari). But the appellate court held that in the absence of further guidance from this Court it would apply the same “no evidence” criterion of Thompson v. Louisville that the District Court had adopted. The court was of the view that some evidence that the petitioner had intended to kill the victim could be found in the facts that the petitioner had reloaded his gun after firing warning shots, that he had had time to do so, and that the victim was then shot not once but twice. The court also concluded that the state trial judge could have found that the petitioner was not so intoxicated as to be incapable of premeditation.
We granted certiorari to consider the petitioner’s claim that under In re Winship, supra, a federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt. 439 U. S. 1001.
II
Our inquiry in this case is narrow. The petitioner has not seriously questioned any aspect of Virginia law governing the allocation of the burden of production or persuasion in a murder trial. See Mullaney v. Wilbur, 421 U. S. 684; Patterson v. New York, 432 U. S. 197. As the record demonstrates, the judge sitting as factfinder in the petitioner’s trial was aware that the State bore the burden of establishing the element of premeditation, and stated that he was applying the reasonable-doubt standard in his appraisal of the State’s evidence. The petitioner, moreover, does not contest the conclusion of the Court of Appeals that under the “no evidence” rule of Thompson v. Louisville, supra, his conviction of first-degree murder is sustainable. And he has not attacked the sufficiency of the evidence to support a conviction of second-degree murder. His sole constitutional claim, based squarely upon Winship, is that the District Court and the Court of Appeals were in error in not recognizing that the question to be decided in this case is whether any rational factfinder could have concluded beyond a reasonable doubt that the killing for which the petitioner was convicted was premeditated. The question thus raised goes to the basic nature of the constitutional right recognized in the Winship opinion.
III
A
This is the first of our cases to expressly consider the question whether the due process standard recognized in Winship constitutionally protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. Upon examination of the fundamental differences between the constitutional underpinnings of Thompson v. Louisville, supra, and of In re Winship, supra, the answer to that question, we think, is clear.
It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas, 333 U. S. 196, 201; Presnell v. Georgia, 439 U. S. 14. These standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. E. g., Hovey v. Elliott, 167 U. S. 409, 416-420. Cf. Boddie v. Connecticut, 401 U. S. 371, 377-379. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the Thompson case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. See also Vachon v. New Hampshire, 414 U. S. 478; Adderley v. Florida, 385 U. S. 39; Gregory v. Chicago, 394 U. S. 111; Douglas v. Buder, 412 U. S. 430. The “no evidence” doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty.
The Court in Thompson explicitly stated that the due process right at issue did not concern a question of evidentiary “sufficiency.” 362 U. S., at 199. The right established in In re Winship, however, clearly stands on a different footing. Winship involved an adjudication of juvenile delinquency made by a judge under a state statute providing that the prosecution must prove the conduct charged as delinquent— which in Winship would have been a criminal offense if engaged in by an adult — by a preponderance of the evidence. Applying that standard, the judge was satisfied that the juvenile was “guilty,” but he noted that the result might well have been different under a standard of proof beyond a reasonable doubt. In short, the record in Winship was not totally devoid of evidence of guilt.
The constitutional problem addressed in Winship was thus distinct from the stark problem of arbitrariness presented in Thompson v. Louisville. In Winship, the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U. S., at 364. In so holding, the Court emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between crimi-" nal culpability and civil liability. Id., at 358-362. See Davis v. United States, 160 U. S. 469; Brinegar v. United States, 338 U. S. 160, 174; Leland v. Oregon, 343 U. S. 790; 9 J. Wigmore, Evidence § 2495, pp. 307-308 (3d ed. 1940). Cf. Woodby v. INS, 385 U. S. 276, 285. The standard of proof beyond a reasonable doubt, said the Court, "plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance’? to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. 397 U. S., at 363. At the same time, by impressing upon the factfinder the need to¡ reach a subjective state of near certitude of the guilt of the i accused, the standard symbolizes the significance that our ‘ society attaches to the criminal sanction and thus to liberty itself. Id., at 372 (Harlan, J., concurring).
The constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on “proof beyond a reasonable doubt....” In subsequent cases.discussing the reasonable-doubt standard, we have never departed from this definition of the rule or from the Winship understanding of the central purposes it serves. See, e. g., Ivan V. v. City of New York, 407 U. S. 203, 204; Lego v. Twomey, 404 U. S. 477, 486-487; Mullaney v. Wilbur, 421 U. S. 684; Patterson v. New York, 432 U. S. 197; Cool v. United States, 409 U. S. 100, 104. In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall he._made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. -•
B
Although several of our cases have intimated that the fact-finder’s application of the reasonable-doubt standard to the evidence may present a federal question when a state conviction is challenged, Lego v. Twomey, supra, at 487; Johnson v. Louisiana, 406 U. S. 356, 360, the Federal Courts of Appeals have generally assumed that so long as the reasonable-doubt instruction has been given at trial, the no-evidence doctrine of Thompson v. Louisville remains the appropriate guide for a federal habeas corpus court to apply in assessing a state prisoner’s challenge to his conviction as founded upon insufficient evidence. See, e. g., Cunha v. Brewer, 511 F. 2d 894 (CA8). We cannot agree.
The Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive-; | constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. - A “reasonable doubt/’ at a minimum, is one based upon “reason.” Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact. could find guilt beyond a reasonable doubt, and the same may,. be said of a trial judge sitting as a jury. In a federal trial,' such an occurrence has traditionally been deemed to require reversal of the conviction. Glasser v. United States, 315 U. S. 60, 80; Bronston v. United States, 409 U. S. 352. See also, e. g., Curley v. United States, 81 U. S. App. D. C. 389, 392-393, 160 F. 2d 229, 232-233. Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.
A federal court has a duty to assess the historic facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. For example, on direct review of a state-court conviction, where the claim is made that an involuntary confession was used against the defendant, this Court reviews the facts to determine whether the confession was wrongly admitted in evidence. Blackburn v. Alar bama, 361 U. S. 199, 205-210. Cf. Drope v. Missouri, 420 U. S. 162, 174-175, and n. 10. The same duty obtains in federal habeas corpus proceedings. See Townsend v. Sain, 372 U. S. 293, 318; Brown v. Allen, 344 U. S. 443, 506-507 (opinion of Frankfurter, J.).
After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Woodby v. INS, 385 U. S., at 282 (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U. S., at 362. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant j has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal, conclusion that upon judicial review all of the evidence is to¡ be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.
That the Thompson “no evidence” rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent. “[A] mere modicum of evidence may satisfy a ‘no evidence’ standard... Jacobellis v. Ohio, 378 U. S. 184, 202 (garren, C. J., dissenting). Any evidence that is relevant — that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence, cf. Fed. Rule Evid. 401 — could be deemed a “mere modicum.” But it could not seriously be argued that such a “modicum” of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored.
C
Under 28 U. S. C. § 2254, a federal court must entertain a claim by a state prisoner that he or she is being held in “custody in violation of the Constitution or laws or treaties of the United States.” Under the Winship decision, it is clear that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Thus, assuming that state remedies have been exhausted, see 28 U. S. C. §2254 (b), and that no independent and adequate state ground stands as a bar, see Estelle v. Williams, 425 U. S. 501; Francis v. Henderson, 425 U. S. 536; Wainwright v. Sykes, 433 U. S. 72; Fay v. Noia, 372 U. S. 391, 438, it follows that such a claim is cognizable in a federal habeas corpus proceeding. The respondents have argued, nonetheless, that a challenge to the constitutional sufficiency of the evidence should not be entertained by a federal district court under 28 U. S. C. § 2254.
In addition to the argument that a Winship standard invites replication of state criminal trials in the guise of § 2254 proceedings — an argument that simply fails to recognize that courts can and regularly do gauge the sufficiency of the evidence without intruding into any legitimate domain of the trier of fact — the respondents have urged that any departure from the Thompson test in federal habeas corpus proceedings will expand the number of meritless claims brought to the federal courts, will duplicate the work of the state appellate courts, will disserve the societal interest in the finality of state criminal proceedings, and will increase friction between the federal and state judiciaries. In sum, counsel for the State urges that this type of constitutional claim should be deemed to fall within the limit on federal habeas corpus jurisdiction identified in Stone v. Powell, 428 U. S. 465, with respect to Fourth Amendment claims. We disagree.
First, the burden that is likely to follow from acceptance of the Winship standard has, we think, been exaggerated. Federal-court challenges to the evidentiary support for state convictions have since Thompson been dealt with under § 2254. E. g., Freeman v. Stone, 444 F. 2d 113 (CA9); Grieco v. Meachum, 533 F. 2d 713 (CA1); Williams v. Peyton, 414 F. 2d 776 (CA4). A more stringent standard will expand the contours of this type of claim, but will not create an entirely new class of cases cognizable on federal habeas corpus. Furthermore, most meritorious challenges to constitutional sufficiency of the evidence undoubtedly will be recognized in the state courts, and, if the state courts have fully considered the issue of sufficiency, the task of a federal habeas court should not be difficult. Cf. Brown v. Allen, 344 U. S., at 463. And this type of claim can almost always be judged on the written record without need for an evidentiary hearing in the federal court.
Second, the problems of finality and federal-state comity arise whenever a state prisoner invokes the jurisdiction of a federal court to redress an alleged constitutional
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_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Frank J. PETTINELLI, et al., Plaintiffs-Appellants, v. Edmund R. DANZIG, et al., Defendants-Appellees.
No. 82-3122.
United States Court of Appeals, Eleventh Circuit.
Jan. 12, 1984.
See also, 5 Cir., 644 F.2d 1160.
Anthony N. Del Rosso, P.C., Mineóla, N.Y., for plaintiffs-appellants.
Antinori & Thury, P.A., Paul Antinori, Jr., Tampa, Fla., Rives, Strohauer & Tee-van, P.A., Ronald P. Teevan, Clearwater, Fla., for defendants-appellees.
Before FAY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
FAY, Circuit Judge:
This stockholder’s derivative suit arises out of the formation and capitalization in the early 1970s of Skyway Development Corporation, a Florida land development corporation. The appellants are investors in Skyway who allege that the officers and directors of Skyway violated securities law (15 U.S.C. §§ 77a-77aa), and breached their fiduciary duties as corporate officials causing dilution of appellants’ stock. The appellants also allege that the appellees fraudulently induced them to invest in Skyway. The defendants moved for summary judgment which was granted for all actions or inactions occurring before March 20, 1974. This is the date of a written “Agreement and Release” that settled all claims between these parties prior to that date. The district court denied summary judgment for issues surrounding events after that date because factual issues may still exist for that period of time. We agree with the district court that the 1974 Release conclusively resolves all claims prior to that date and, therefore, affirm.
Appellants raise two issues: (1) whether they were fraudulently induced to execute the 1974 Release under Florida law; and (2) whether the district court properly applied Federal Rule of Civil Procedure 56 in assessing the existence or nonexistence of factual disputes.
Our presentation of the facts is gleaned from appellants’ pleadings, affidavits and memorandum in opposition to summary judgment. By drawing our facts from these documents we will be considering the facts in the light most favorable to the opponents of the motion. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
The appellees formed Skyway to develop property at Terra Ceia in Manatee County, Florida. Between 1970 and 1972 some of the appellees convinced each appellant to invest money or services in Skyway in exchange for yet to be issued stock shares. To persuade appellants to invest in Skyway, appellees represented that they owned the land which was appraised at twenty-six million dollars and that they had already accumulated substantial revenues from other investors. A development plan, including projections for local government permit approval, was part of the presentation to appellants. The appellees further represented that only five hundred shares of Skyway stock would be issued and that each share would have one vote. Appellees would own 52% of the stock, the appellants 29%, and 19% would be retained as treasury shares.
After appellants invested their money and services no stock issued. As early as 1970, appellants made demand for the stock issuance and in 1972 they also requested to examine the corporate by-laws and books. In May of 1972, unannounced to the appellants, the Skyway board of directors met and decided to offer the appellants a refund of their investment in lieu of stock or to offer them a total of 375 shares. The Board also authorized issuance of one thousand shares of Skyway stock. Appellants thereafter demanded stock issuance, an accounting, and asked the board to institute a derivative action against the appellees.
Since its inception, Skyway has had financial difficulties. In 1974 when appellants were requesting a derivative action be brought, the Board, which is substantially the appellees, indicated that a derivative suit could have an adverse impact upon pending local government permit applications, mortgage applications, and could cause cancellation of existing mortgages. Appellees and appellants therefore negotiated a settlement on March 20, 1974 that was embodied in a written Agreement and Release. The Release provides in part:
That in consideration of the issuance nunc pro tunc, as of the respective dates of the aforesaid Purchase Agreements, by Skyway to the Purchasers of the following shares of Skyway common capital stock, the Purchasers individually and collectively for themselves, their heirs, personal representatives, successors and assigns do hereby release, settle, cancel, discharge, remise and acknowledge to be fully satisfied any and all claims, demands, rights, actions and cause of action of every kind, nature and description whatsoever, known or unknown, which the Purchasers, jointly or severally, may now have or hereafter have or assert against Skyway, its present and past officers, directors, stockholders, employees and agents arising out of actions or inac-tions of Skyway and of said persons which have occurred to date; except any claims which they or any one or more of them may have by way of derivative claim against John R. Albershardt, and as to this claim they and each of them agree not to bring or cause to be brought any action thereon without the written agreement of Skyway, and they hereby agree that no action shall be brought on said claim other than by and on the decision of Skyway:
Number of Shares Name
Harry Skiadas 25
George Skiadas 25
Andre B. Buehler 10
Frank J. Pettinelli 10
Eugene F. Pettinelli 50
Anthony N. Del Rosso 10
R. Vol. 2 at 353 (emphasis added). The district court based its partial summary judgment order on this Release.
Appellants also complain of misconduct and fraud subsequent to the Release; specifically, failure to promptly allow inspection of the books according to the Release provision. Any issues based on facts after the March 20, 1974 Release are not relevant to our decision. The district court’s partial summary judgment order only limited the appellants’ suit to events occurring after the Release, therefore, all causes of action arising after the Release date may still be litigated. Because the district court found that no facts were suggested that showed the two corporate ap-pellees were involved in any events after the Release, full summary judgment was granted as to them. ,
Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). In this case, the propriety of the summary judgment is determined by the substantive ruling on the effect of the Release under Florida law. If the Release is such that it precludes any inquiry into fraud in the inducement, then there can be no factual dispute. If so, the only issue before the trial court was a legal one, susceptible of summary judgment. Appellants’ argument that the trial judge did not consider the existence of questions of material fact in the light most favorable to them would be moot for that rule only applies “when the parties’ dispute is factual.” Federal Deposit Ins. Corp. v. Dye, 642 F.2d 837, 841 (5th Cir.1981) (Unit B). Accordingly, we examine Florida law on fraud to determine if the legal issue of fraud resolves any potential factual questions.
The common law remedy for fraud requires that the plaintiff show that the defendant (1) made a false representation of fact, (2) that the defendant knew was false when made, and (3) that the representation was made for the purpose of inducing the plaintiff to act in reliance of it. Cavic v. Grand Bahama Devel. Co., Ltd., 701 F.2d 879 (11th Cir.1983), citing Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1000 (5th Cir.1974) quoting Poliakoff v. National Emblem Ins. Co., 249 So.2d 477, 478 (Fla. 3d DCA 1971). The misrepresentation must be about a present or past fact rather than a future fact. Cameron v. Outdoor Resorts of America, Inc., 608 F.2d 187, 195 modified in part on rehearing, 611 F.2d 105 (5th Cir.1979). Another element of common law fraud was enunciated in Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (1934). In Columbus Hotel, the court ruled that plaintiffs were not entitled to relief from a fraudulently procured contract because the plaintiffs had no right to rely on the misrepresentations. Thus, in addition to the enumerated three criteria, fraud requires a showing that the plaintiffs had a right to rely on the representations.
In attempting to prove fraud in the inducement in the instant case, the appellants encounter two difficulties: first, showing that a material misrepresentation was made; and second, demonstrating that they were in a position to justifiably rely on any such representation. The Release agreement states that this “Agreement and Release contains the understanding of the parties.” R. Vol. 2 at 355. Appellants argued in the district court and argue here that notwithstanding this clause other representations not embodied in the Release were made. Specifically, appellants assert that it was represented that Skyway would pursue legal remedies against John Alber-shardt to recover stock and would open its books for prompt inspection. Both of these matters were fully addressed m the written agreement and cannot be altered with parol evidence. No other examples or allegations of misrepresentation are offered by the appellants. For purposes of showing fraud, it is sufficient to note that any alleged representations made prior to the Release merge into the Release clauses that address the same terms or representation. See, Jacksonville Paper Co. v. Smith & Winchester Mfg. Co., 147 Fla. 311, 2 So.2d 890 (1941). If one or both of these terms has not been performed then a breach of contract action may be appropriate. Such an action would survive the partial summary judgment as it would be based on events after the Release date.
Even if representations were made that were false and did induce the appellants to enter into the Release in reliance thereon, such reliance was unjustified. In Columbus Hotel, supra, the court prefaced its conclusion that reliance was unjustified with a discussion of the parties involved in the contract. The parties were both represented by counsel and were specifically advised not to rely on any representations. 156 So. at 900. From the beginning of the negotiations it was clear that the parties were in an adversarial relationship. Id. at 899.
In the instant case, the appellants include Anthony Del Rosso, a New York attorney. He was involved in the negotiations and presumably had enough legal acumen to understand and protect his own and other appellants’ interests. Throughout this negotiation period appellants knew from their own dealings that they should not rely on any representations made by defendants. Appellants also knew that by the Release terms, they would not know the condition of Skyway until they inspected the books. Appellants did not insist upon examining the books prior to the execution of the Release and did not insist upon the insertion of any specific written representations as to the financial condition of Skyway. As to action against Albershardt, appellants granted all authority to Skyway in its exclusive discretion. When negotiating or attempting to compromise an existing controversy over fraud and dishonesty it is unreasonable to rely on representations made by the allegedly dishonest parties. See Sutton v. Crane, 101 So.2d 823 (Fla. 2d DCA 1958). Thus, the appellants have failed to make a prima facie case of fraud because they had no legal right to rely on any representations under these circumstances. Further, because the Release itself contains a merger clause appellants have not raised any misrepresentation not covered by the Release upon which they were fraudulently induced to enter the Release. We agree with the district court that under Columbus Hotel, the appellants have not raised a genuine issue as to fraud.
Florida law favors the finality of settlements. DeWitt v. Miami Transit Co., 95 So.2d 898 (Fla.1957); Lotspeich Co. v. Neogard Corp., 416 So.2d 1163 (Fla.3d DCA 1982). In this case appellants contractually waived any right to complain of events prior to March 20, 1974. Partial summary judgment was correct because as a matter of law the appellants have failed to present any issue which would support a prima fa-cie case of fraud in the inducement. We agree with the district court that no facts were introduced that involve the corporations after the Release date, therefore, full summary judgment as to them was proper. We emphasize that performance under or breach of the terms of the Release, and any fraud after the Release date, may still be litigated.
AFFIRMED.
. In Bleemer v. Keenan Motors, Inc., 367 So.2d 1036 (Fla. 3d DCA 1979) an exception to the merger rule was made. The court first announced the general rule that “representations and negotiations which precede and accompany the making of contracts are presumed to have merged into the written contract,” however, the merger rule “has no application where the legal existence or binding force of the instrument is in question.” Id. at 1038. In the instant case, appellants have not contested the legal existence of the 1974 Release, therefore, the Bleemer exception does not apply.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_direct1 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. 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.
UNITED STATES of America, Plaintiff-Appellee, v. Vilma Allison OLMEDA, Defendant-Appellant.
No. 87-5107.
United States Court of Appeals, Eleventh Circuit.
March 14, 1988.
Miguel Caridad, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.
Leon B. Kellner, U.S. Atty., Susan Tarbe, Linda C. Hertz, Allan B. Kaiser, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.
KRAVITCH, Circuit Judge:
Appellant Vilma Olmeda was convicted of making false declarations before a grand jury in violation of 18 U.S.C. § 1623. Prior to trial, Olmeda moved to suppress the statements she had made before the grand jury. She claimed that her fifth amendment rights had been violated at the grand jury proceeding when, after she had requested an attorney, the prosecutor continued to question her and failed to appoint an attorney for her. On appeal, Olmeda challenges the district court’s denial of her motion to suppress. We affirm.
I.
As Robert Aldana was driving away from his residence on the morning of December 20, 1985, another automobile intercepted him. He was forced at gunpoint from his car, blindfolded, and placed in the rear of a van. His abductors drove him to an apartment at 1560 West 42nd Street in Hialeah, Florida, where they held him captive while they attempted to extort a ransom from his father. When it became clear that no ransom was forthcoming, the kidnappers released Aldana at 11:45 p.m. on the same day.
Agents of the Federal Bureau of Investigation (FBI) traced the extortionate telephone calls to the 42nd Street apartment in Hialeah. On the day after the kidnapping, FBI agents observed appellant Olmeda at the apartment in question, as well as at a shopping center accompanying the alleged kidnappers in the disposal of Aldana’s car.
On January 3, 1986, Olmeda was subpoenaed before the grand jury investigating Aldana’s kidnapping. At the time of her appearance, one of the alleged kidnappers had been indicted; two other persons subsequently were indicted. Although Olme-da never was charged with a substantive offense relating to the kidnapping, she was charged with perjury on the basis of her grand jury testimony that she had not been at the site of the kidnapping on December 21.
When Olmeda appeared before the grand jury, the Assistant United States Attorney conducting the questioning advised her that she had the right not to answer any question if the answer to such question would tend to incriminate her, that anything she said could be used against her in any legal proceeding, that if she had an attorney the grand jury would allow her a reasonable opportunity to consult with that attorney, and that she was not at that point a target of the grand jury investigation, although she could become one in the future. When the prosecutor asked her if she had any questions about her rights, appellant asked, “If I want to talk to an attorney, is there an attorney I can talk to out there, would they give me one or — ” at which point the prosecutor told her, “Ma’am, I really don’t know. I mean, that’s up to you.” After a few more exchanges, the prosecutor stated, “Okay. My question to you is: Do you want to talk to an attorney and not answer questions, or do you want to go ahead and answer questions before this Grand Jury? That choice is yours, Miss.” Olmeda responded, “Well, I would — I would like — I would answer the questions, but, then, at the same time, there’s a question I have, you know, a question that you give me that I have a question to ask, I’d like to maybe be able to step outside and talk to someone about it.” The prosecutor told her that the grand jury had no attorney to give her, and asked, given that situation, if she was willing to answer questions, to which Olmeda replied, “Fine.” Subsequently, Olmeda gave the testimony for which she was convicted. When asked whether she had visited the 42nd Street apartment on Saturday, December 21, the day after the kidnapping, she responded, “No.” When prodded by further questioning, she added that she was there “[a]t no time_ The only place I went — I went and put $5 of gas in the car, came back home and later on that day, about 11-12 o’clock, we went to the bar.” These statements provided the basis for her indictment and conviction for making false statements to a grand jury in violation of 18 U.S.C. § 1623.
II.
Olmeda contends that her request for an attorney at the grand jury inquiry should have halted all questioning until an attorney was appointed to represent her. She compares her situation to that in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which established that the police must stop all custodial interrogation of a suspect once that suspect requests an attorney. In Edwards, the suspect told the police that he wanted an attorney before making a deal with them, at which point their questioning of him ceased and he was placed in jail. The next morning, when two police detectives arrived to question him, he stated that he did not want to talk to anyone. He was told, however, that “he had” to talk, and shortly thereafter he implicated himself in the crime. The Supreme Court held that the use of his confession “against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, [384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)],” in that “an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.” Edwards, 451 U.S. at 480-82, 101 S.Ct. at 1882-83.
Olmeda contends, as did the suspect in Edwards, that she invoked her right to consult with an attorney, and that the prosecutor’s continued interrogation of her was as violative of her fifth amendment right to have counsel present during interrogation as was the police detectives’ questioning of Edwards after he had requested counsel. She contends that even though the suspect in Edwards was in a traditional custodial setting, she was similarly under a legal disability as she was compelled by subpoena to be present before the grand jury. She points out that under the Judicial Conference guidelines then in effect, the prosecutor could in fact have obtained an attorney for her, and she argues that his failure to do so violated her fifth amendment rights.
We find it unnecessary to reach appellant’s argument that questioning before the grand jury provides a sufficiently coercive setting as to require the full range of Miranda protections. We note that her contention that Edwards applies to the grand jury setting has not been decided by the Supreme Court. Moreover, the Court has not yet decided whether “the grand jury setting presents coercive elements which compel witnesses to incriminate themselves.... [or] whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses.” United States v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977). In Washington, because the potential defendant had been fully informed of his rights under Miranda, including the right to appointed counsel, pri- or to testifying before the grand jury, the Court declined to decide whether Miranda warnings were constitutionally required in the grand jury setting. 431 U.S. at 190, 97 S.Ct. at 1820.
The Court has clearly decided, however, that “[t]he Fifth Amendment privilege against compulsory self-incrimination provides no protection for the commission of perjury.” United States v. Mandujano, 425 U.S. 564, 609, 96 S.Ct. 1768, 1792, 48 L.Ed.2d 212 (1976) (Stewart, J., concurring in the judgment). Prior to being subpoenaed before a federal grand jury, Manduja-no had been investigated by an agent of the Drug Enforcement Administration (DEA). The DEA agent had given Mandu-jano $650 to obtain some heroin, but Man-dujano shortly returned the money to the agent without producing any drugs, and he failed to keep a subsequent appointment with the agent. The investigation file on Mandujano was then closed, but the DEA agent turned over the information he had obtained to federal prosecutors, who then subpoenaed Mandujano to testify before the grand jury. When called into the grand jury room, Mandujano was told that he did not have to answer any questions which would incriminate him, and that he could be charged with perjury if he provided any false answers. The prosecutor also asked him if he had contacted an attorney, to which he responded that he had not because he could not afford one. The prosecutor replied:
Well, if you would like to have a lawyer, he cannot be inside this room. He can only be outside. You would be free to consult with him if you so chose. Now, if during the course of this investigation, the questions that we ask you, if you feel like you would like to have a lawyer outside to talk to, let me know.
Id. at 567, 96 S.Ct. at 1772. At no time, however, was Mandujano informed that an attorney would be appointed for him at the government’s expense if he was financially unable to retain one. See United States v. Mandujano, 496 F.2d 1050, 1051, n. 1 (5th Cir.1974), rev’d, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976).
During the questioning Mandujano admitted that he had previously been convicted of distributing drugs, and that he had purchased heroin in the previous five months. Nevertheless, he denied knowledge of any drug dealers except for one streetcomer source and disclaimed that he either sold or attempted to sell heroin since the time of his conviction fifteen years earlier. He specifically denied having discussed the sale of heroin with anyone in the past year and said that he would not even attempt to purchase an ounce of heroin for $650.
About one month later, Mandujano was indicted for attempting to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, and for willfully making false declarations before the grand jury in violation of 18 U.S.C. § 1623. In support of a motion to suppress his grand jury testimony, he argued that as he was a “putative” defendant when he was called before the grand jury, his testimony should be suppressed because he was not given full Miranda warnings. Although the eight justices participating in the Mandujano case were unable to reach a majority decision about whether such warnings were constitutionally required, they all agreed that even if such warnings should have been given, the failure of the prosecution to provide them could not constitute a defense to a charge of perjury based upon the witness’ false testimony. As Justice Brennan explained, “Although the Fifth Amendment guaranteed respondent the right to refuse to answer the potentially incriminating questions put to him before the grand jury, in answering falsely, he took ‘a course that the Fifth Amendment gave him no privilege to take.’ ” 425 U.S. at 584-85, 96 S.Ct. at 1780 (quoting United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 366, 24 L.Ed.2d 275, 280 (1969)).
Other cases have affirmed the principle that “perjury is not a permissible way of objecting to the government’s questions.” United States v. Wong, 431 U.S. 174, 180, 97 S.Ct. 1823, 1827, 52 L.Ed.2d 231 (1977). In Wong, the unanimous Court held that the defendant’s failure to understand the warning of the right not to answer incriminating questions because of her limited command of English did not require suppression of her false testimony. The Court stated that even the perceived dilemma of being forced to choose between self-incrimination and lying under oath did not justify perjury, and that neither the fifth amendment nor the due process clause required suppression of the defendant’s false testimony. Rather, the witness had the choice of asserting the privilege or answering the question truthfully. For “even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely.” Id. at 180, 97 S.Ct. at 1827 (citing United States v. Knox, 396 U.S. 77, 82-83, 90 S.Ct. 363, 366-67, 24 L.Ed.2d 275 (1969)).
The same principle applies in this case. We need not decide whether the Constitution requires that an attorney be appointed for potential defendants who are subpoenaed to appear before a grand jury and who request to consult with an attorney about the questioning, although we agree that it is better practice, as recognized in the Judicial Conference guidelines, to provide counsel for such witnesses. For even if appellant has a constitutional right to consult with an attorney during the course of the grand jury proceeding, the failure of the government to provide an attorney for her does not excuse perjury on her part. “ ‘Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.’ ” Mandujano, 425 U.S. at 609, 96 S.Ct. at 1792 (Stewart, J., concurring in the judgment) (quoting Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 369, 24 L.Ed.2d 264, 271 (1969) (footnote omitted)).
Olmeda also argues that we should exercise our supervisory power to suppress her grand jury testimony. She reasserts that the prosecutor was incorrect when he informed her that he could not appoint an attorney for her. Olmeda cites a September 30,1986 memorandum from the Administrative Office of the United States Courts reporting that the Judicial Conference has authorized the appointment of counsel for a witness before a grand jury “when there is reason to believe that the witness could be subject to prosecution, contempt, or face loss of liberty.”
Although we agree, as stated above, that it would have been better practice for the prosecutor to have obtained counsel for Olmeda pursuant to the Judicial Conference guidelines, we decline to exercise our supervisory jurisdiction to suppress her testimony in this case. Here, as in United States v. Whitaker, 619 F.2d 1142 (5th Cir.1980), there is no evidence that the government was using the grand jury mechanism to set a trap for Olmeda. Moreover, she was never prosecuted for any substantive offenses. Accordingly, we decline to exercise our supervisory jurisdiction to suppress appellant’s testimony before the grand jury. Thus, we AFFIRM the decision of the district court.
AFFIRMED.
. These three individuals pleaded guilty and were sentenced to 15 years imprisonment.
. The guidelines were published in a Memorandum dated September 30, 1986 from the Administrative Office of the United States Courts.
. Appellant’s argument is based on the fifth amendment, not the sixth amendment right to counsel. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Court held that a person’s sixth amendment right to counsel does not attach until the initiation of judicial criminal proceedings against him or her.
. In Washington, the Court held that the testimony of a grand jury witness suspected of illegal activity could be used against him in a subsequent prosecution for a substantive criminal offense, even though the witness had not been warned prior to giving his grand jury testimony that he was a potential defendant. The Court determined that the warnings which had been given to the defendant, including that he had the right to remain silent and that anything he said could be used against him in court, were adequate to apprise him of his right not to incriminate himself. Accordingly, given the adequacy of the warnings and the circumstances of the grand jury interview, which should have put him on notice that he was a suspect, the defendant need not additionally have been warned that he was a potential defendant. 431 U.S. at 186-90, 97 S.Ct. at 1818-20.
. See abo United States v. Yeager, 537 F.2d 835 (5th Cir.1976) (per curiam) (following Manduja-no ’s holding that "in a perjury prosecution a defendant may not use the privilege against self-incrimination as the basis for suppressing the very grand jury testimony that prompted the perjury charge."); United States v. Smith, 538 F.2d 159, 163 (7th Cir.1976) (“'the Government’s failure to give Miranda-type warnings to a grand jury witness, even one as to whom the proceedings have become accusatory, does not bar a perjury prosecution for false testimony before the grand jury.’ ”) (quoting United States v. DiGiovanni, 397 F.2d 409, 412 (7th Cir.), cert. denied, 393 U.S. 924, 89 S.Ct. 256, 21 L.Ed.2d 260 (1968)) (footnote omitted).
The Eleventh Circuit, in the in banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. Thus, we specifically reserve the question of whether the grand jury testimony of a witness who is later indicted for a substantive offense on the basis of the testimony should be suppressed if an attorney was not made available to the witness upon request.
. See United States v. Smith, 538 F.2d 159, 163 (7th Cir.1976) (affirming the district court’s denial of a motion to suppress the defendant’s grand jury testimony, and noting that "as in Mandujano, the witness was not prosecuted for criminal activity on the basis of incriminating statements made before the grand jury to which Fifth and Sixth Amendment protections might be said to extend. Instead, the witness was prosecuted for committing perjury in answering the grand jury’s questions.’’).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_procedur | C | 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.
James T. CRUES, Appellant, v. KFC CORPORATION, Appellee.
No. 84-2317.
United States Court of Appeals, Eighth Circuit.
Submitted April 12, 1985.
Decided July 16, 1985.
Barry Ginsburg, Clayton, Mo., for appellant.
John S. Sandberg, St. Louis, Mo., for appellee.
Before ROSS, ARNOLD and JOHN R. GIBSON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
James T. Crues appeals from a judgment entered on a jury verdict for KFC Corporation on his fraud claim. He argues that the magistrate improperly instructed the jury, primarily in that two converse instructions were given in violation of Missouri procedural law. We affirm.
This is the second time this case has been appealed. Crues obtained a verdict against KFC in the first trial and we reversed because of substantive instruction errors and the failure to submit the issue of punitive damages. Crues v. KFC Corp., 729 F.2d 1145 (8th Cir.1984).
The facts of this diversity case have been discussed in detail on the earlier appeal. 729 F.2d at 1147. The evidence presented during retrial was essentially the same as that in the first trial. Crues’ claim was based on a representation by KFC that a fast-food fish franchise, the H. Salt Seafood Galley, was an “efficient high volume profit producer.” He contended that this statement was fraudulent in that it was made by KFC, who knew it was false and intended that Crues rely on it. This claim was reflected in verdict-directing Instruction No. 8. Instruction No. 10 directed a verdict for KFC if the jury found that the statement was true, that Crues did not rely on it, that Crues did not use ordinary care in relying on it, or that Crues did not suffer damages as a result of the representation. This type of instruction is known in Missouri procedure as a converse instruction. Missouri Approved Instructions Nos. 33.-01-33.15 (3d ed. 1981); Thomas, Converse Instructions Under MAI, 42 Mo.L.Rev. 175, 175-76 (1977). Defendant’s Instruction No. 12, the object of Crues’ appeal, provided:
The evidence shows that on February 7, 1977, KFC Corporation notified the plaintiff that he might want to reconsider starting construction of an H. Salt Seafood Galley restaurant in St. Louis. If you find from a preponderance of the evidence that plaintiff, despite receiving this letter, proceeded with construction based on his own independent decision and not in reliance on representations by KFC Corporation, then you may not consider damages, if any, occurring as a result of plaintiff’s decision to proceed.
The jury returned a verdict for KFC.
I.
Crues argues that Instruction No. 12 was improper because it was a second converse instruction in violation of Missouri instruction law; unduly emphasized evidentiary details favorable to KFC; submitted the “false issue” of Crues’ “proceeding with construction”; was inherently misleading in relating the inducement to purchase the franchise to the decision to proceed with construction; and gave the jury a “roving commission.” These arguments are buttressed primarily with Missouri cases defining state instruction law.
This court recently gave detailed consideration to the relationship between state and federal instruction standards:
[M]any of the states, significantly Missouri, have developed extremely complex rules and procedures and voluminous case law governing instructions. The district judge need not be unduly concerned with arguments asserting the state’s procedural authority relating to instructions as long as the substantive law is correctly stated in a form consistent with the federal procedural law governing instructions. Similarly, on appeal we need not consider the intricacies of state procedural instruction law, as we are asked to do here. Rather, we review the instructions as a whole only to determine that they fairly and adequately state the applicable law.
Chohlis v. Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir.1985). This passage answers almost all of Crues’ arguments. Our only concern is whether Instruction No. 12 was so misleading that it did not fairly and adequately state Missouri law. The facts show two key dates: July 19, 1976, the date that Crues purchased the franchise; and February 7, 1977, the date that KFC sent the cautionary letter. Instruction No. 12 told the jury that it could find that even if Crues had reasonably relied on KFC’s initial representation, his reliance terminated when he received the February 7 letter. Consequently, the jury was directed that damages suffered by Crues after February 7 could not be awarded if his reliance had ended then. We find nothing misleading in this instruction, which dealt with damages as opposed to the liability defense. Considered with the charge as a whole, Instruction No. 12 did not misstate the applicable law.
II.
Crues also argues that the district court, 546 F.Supp. 217 (D.C.Mo.1982), erred in admitting KFC’s evidence concerning the conduct of other franchisees who elected not to proceed after receiving letters similar to the one Crues received in February 1977. He contends that such evidence was legally irrelevant because of an absence of proof that other franchisees were situated similarly to Crues.
The district court’s evidentiary ruling is subject to review only for an abuse of discretion. See R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266, 275 (8th Cir.1985). We find no such abuse here. First, the evidence introduced by KFC on this matter was cumulative; Crues had introduced similar proof regarding other franchisees in his case in chief. See Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 132 (8th Cir.1985). Second, there was some evidence, although not substantial, that the other persons who received the cautionary letter were in similar circumstances. Thus, the evidence was relevant. Questions about how similar the other occurrences may have been relate to the weight of this evidence rather than its admissibility. Crues had ample opportunity to cross-examine the foundation witnesses to show the jury that his situation was unique. We also reject the argument that the evidence of similar franchisees was erroneously highlighted by a question from the bench or defense counsel’s closing argument.
III.
Crues also contends that the district court erred in admitting proof concerning KFC’s two offers to convert his fish franchise to a chicken franchise. Crues argues that this evidence was inadmissible as an offer to compromise under Fed.R.Evid. 408.
The admission of this evidence is grounds for reversal only if the district court abused its discretion. There is abundant support for the court’s decision. First, the evidence introduced by KFC was cumulative; Crues had proved the offer during his case-in-chief. Second, the initial offer was made more than three years before the lawsuit was filed. Rule 408 applies only to an offer to compromise a “claim,” and it is not clear that Crues had a claim against KFC in August 1977. To the contrary, his actions at that time showed his intent to proceed with the fish franchise. That the same offer was made after litigation commenced is not a reason to exclude proof of the offer in its initial context. Third, Crues cites no federal cases holding that Rule 408 applies to admissions of compromise against the offeree. The rule is concerned with excluding proof of compromise to show liability of the offeror. C. McCormick, McCormick on Evidence § 264, at 712 (E. Cleary 3d ed. 1984). KFC submitted the offer to show that Crues was unreasonable in relying on the initial representation in continuing the fish operation. This use of evidence violates neither the spirit nor the letter of Rule 408. See Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 277 (8th Cir.1983).
IV.
Finally, we deal with the issue of costs. On September 7, 1984, KFC filed a bill of costs for $7,628.74 with the district court. On September 9, the clerk taxed Crues with this amount even though Crues did not receive notice of or an opportunity to respond to the KFC filing. Consequently, the taxing of costs must be reversed. See Fed.R.Civ.P. 54(d); E.D.Mo.R. 24(C).
On remand, the district court must deny certain costs requested by KFC. KFC claims $3,240 in transcript fees. Of this amount, $2,754.50 was for preparation of the first-trial transcript. This court has held that the prevailing party at the second trial may be awarded the costs of both trials. Superturf, Inc. v. Monsanto Co., 660 F.2d 1275, 1288 (8th Cir.1981). Nevertheless, this court ordered that the parties bear their own costs for the first appeal. We interpret this order to apply to KFC’s expenses in producing a transcript for its appeal from the first trial and the expense of $44.50 for filing the clerk’s record on the first appeal. Nor can KFC recover $250 for use of a special process server, because 28 U.S.C. § 1920 (1982) contains no provision for such expenses. See Zdunek v. Washington Metropolitan Area Transit Authority, 100 F.R.D. 689, 692 (D.D.C.1983); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2677, at 371-72 (1983).
Other requests require further factual determinations, and on remand the district court should consider the following:
(1) KFC seeks expenses for transcribing portions of the first trial that were not ordered for the appeal but for use during the first trial. Crues contends that this figure cannot be assessed as costs in the second trial. Although this expense may be awarded under Superturf the issue is whether these additional transcripts were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2) (1982). The reason for ordering these extra transcripts has not been explained. On remand, the district court should determine the application of section 1920(2), paying particular attention to McDowell v. Safeway Stores, 758 F.2d 1293, 1294 (8th Cir.1985).
(2) KFC also claims costs of close to $1,000 for trial exhibits, including enlargements. 28 U.S.C. § 1920(4) allows fees for “exemplification and copies of papers necessarily obtained for use in the case.” In Nissho-Iwai Co. v. Occidental Crude Sales, 729 F.2d 1530 (5th Cir.1984), the court allowed costs for enlargements of documents where the parties had agreed to use enlarged copies at trial. Whether such costs would be allowed absent an agreement was not decided. Id. at 1553 n. 36. KFC’s supporting materials do not enable us to determine whether the enlargements were “necessarily obtained for use in the case.” This question should be decided by the district court before determining whether expenses for enlargements can be covered by section 1920(4).
(3) KFC also seeks a $300 fee for the deposition attendance of its expert Grossman. Expenses for expert witnesses not appointed by the court ordinarily are limited by 28 U.S.C. § 1821(a)(1), (b) (1982). On remand, however, the district court should consider this expense in light of Nemmers v. City of Dubuque, 764 F.2d 502, 506 (8th Cir.1985), in which the court allowed additional expenses because the expert’s testimony was “crucial to the issues decided.”
(4) Finally, KFC requests reimbursement for expenses relating to copies of depositions. The record does not show whether the deposition copies were “necessarily obtained for use in the case.” This factual question must be addressed on remand, so we need not decide whether expenses for deposition copies can generally be taxed as costs. See generally SCA Services v. Lucky Stores, 599 F.2d 178, 180-81 (7th Cir.1979) (discussing conflict over this issue).
The judgment is affirmed and the taxing of costs is reversed and remanded.
. The Honorable William S. Bahn, United States Magistrate for the Eastern District of Missouri.
. This ruling must be contrasted to our decision on the first appeal. Here we are confronted with what we consider to be procedural requirements under Missouri law concerning instructions. In our earlier opinion we dealt with omission of a critical substantive element. 729 F.2d at 1151-52.
. The clerk’s docket entries do not reflect a notice to Crues, and KFC left blank the certificate of service portion in the bill of costs filed with the clerk.
. We reject KFC’s argument that our earlier order concerning appellate costs was subject to change depending upon which party prevailed upon retrial.
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_abusedis | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. 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".
John PIERCE, Plaintiff-Appellee, v. F.R. TRIPLER & CO. and Hartmarx Specialty Stores, Inc., Defendants-Appellants.
No. 210, Docket 91-7437.
United States Court of Appeals, Second Circuit.
Argued Sept. 17, 1991.
Decided Jan. 28, 1992.
Watson B. Tucker, Chicago, Ill. (Michael P. Rissman, Amy B. Folbe, Mayer, Brown & Platt, Chicago, Ill., Allen Green, Bell, Kalnick, Beckman, Klee & Green, New York City, of counsel), for appellants.
Debra L. Raskin, New York City (Cary A. Bricker, Vladeck, Waldman, Elias & En-gelhard, of counsel), for appellee.
Before MESKILL, PIERCE and MAHONEY, Circuit Judges.
MESKILL, Circuit Judge:
Appellants F.R. Tripler & Co. (Tripler) and its parent corporation, Hartmarx Specialty Stores, Inc. (collectively “Hart-marx”), appeal from a judgment of the United States District Court for the Southern District of New York, Knapp, J, 770 F.Supp. 118, in favor of plaintiff-appellee John Pierce. The case was tried to a jury which returned a verdict for Pierce, finding that Hartmarx had willfully violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA). Pursuant to 29 U.S.C. § 626(b), the district judge doubled the back pay damage award. The district judge also imposed sanctions under Fed.R.Civ.P. 11 against Hartmarx because of its attempts to introduce evidence of the job offer made to Pierce after he had been discharged. The defendants appeal the judgment, contending that the district judge erred by (1) denying its motion for judgment notwithstanding the verdict; (2) wrongfully instructing the jury; (3) excluding the proffered evidence concerning the job offer; and (4) wrongfully imposing sanctions under Rule 11.
We affirm the judgment and damage award but reverse the imposition of Rule 11 sanctions.
BACKGROUND
The plaintiff in this action, John Pierce, was 63 years old in 1986 and had been employed by Tripler, a wholly owned subsidiary of Hartmarx Specialty Stores, Inc., as its controller for approximately twenty years. In 1985 Hartmarx planned a company wide reorganization of its operations, which included a reduction in its workforce and a consolidation of its financial operations. As a result of this reorganization, Pierce’s position was eliminated and in May 1986 he was discharged.
The age discrimination charge here does not flow from that discharge, however. Rather, it stems from Tripler’s failure to promote Pierce to the position of General Manager, a position available at the time of his discharge because of the retirement of the then General Manager, Andrew Kiszka. That position was awarded to Peter Van Berg, age 39.
Hartmarx had hired Van Berg in January 1984, intending to groom him to take over Kiszka’s position upon the latter’s retirement. In the early 1980s Kiszka had listed Pierce as an individual who could assume the duties of General Manager. Kiszka testified that Pierce was not considered as Kiszka’s successor in 1983-84 in part because Hartmarx was seeking “a fairly young person.”
In early 1986 Kiszka announced that he intended to retire that summer. After Kiszka’s announcement, Hartmarx management reviewed Pierce’s personnel file and evaluations in determining who would become the next General Manager of Tripler. They also considered at least one other individual for the position in addition to Van Berg. Van Berg, whose position had also been eliminated in the reorganization, was ultimately named General Manager.
In May 1986 Kiszka told Pierce that his position had been eliminated in the restructuring and that he was to be discharged. Pierce told both Kiszka and Michael Regan, the Hartmarx official responsible for the supervision of Tripler, that he was more qualified than Van Berg to be General Manager and that he should be hired for that position. During one discussion, Re-gan told Pierce not to get angry with him because he, Regan, was young.
Thereafter, Pierce’s attorney, Debra Ras-kin, informed Tripler by mail that she believed that Pierce had a meritorious age discrimination claim in the denial of the promotion, but that Pierce was reluctant to litigate the matter. Raskin proposed a meeting with Tripler in order to “work out an amicable resolution of this matter.” Carey Stein, General Counsel for Hartmarx Specialty Stores, answered Raskin, stating that while he did not believe that Pierce had a claim, he would be happy to speak to Raskin in order to arrive at “an ‘amicable resolution’ of any claim he [Pierce] may have.”
In early June 1986 Raskin and Stein discussed Pierce’s situation but did not come to any agreement. In late July 1986 Pierce filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination. On September 25, 1986, Stein telephoned Raskin offering Pierce a financial position at the Long Island City warehouse of Wallachs, another Hartmarx subsidiary. This conversation engendered some confusion as to whether Pierce would be required to waive his age discrimination claim in order to accept the position.
After this conversation, Raskin wrote Stein stating: “If you are willing to make this offer of employment... without regard to the settlement of Mr. Pierce’s claims, he would, of course, be willing to give it serious consideration.” Stein responded by letter, stating that he was confused by Raskin’s reference to the offer being “in exchange” for a release. He claimed that he had said that he would not offer the job “just for the purposes of settling the lawsuit,” and that he still thought the lawsuit groundless. He further stated that, although the Wallachs position might already have been offered to someone else, if Pierce were still interested Raskin should call and Stein would check back at Wallachs.
This letter was followed a week later by another from Raskin restating her understanding of the telephone call, which was that the job was conditioned on a release of all claims against the company. Stein wrote back to Raskin, implying that the offer had not been conditioned on such a release, but that they should “agree to disagree about what was said in the phone conversation and get on with the lawsuit if that’s what’s to be.” Pierce then initiated this action in the Southern District of New York.
DISCUSSION
1. Hartmarx’s Motion for Judgment Notwithstanding the Verdict
At the close of plaintiff's case, Hartmarx moved pursuant to Fed.R.Civ.P. 50(a), unsuccessfully, for a directed verdict in its favor. This motion was renewed at the close of its own case, and, after the jury returned a verdict for Pierce, Hartmarx moved for judgment notwithstanding the verdict pursuant to Rule 50(b). Both motions were denied. Hartmarx appeals, claiming that there was not sufficient evidence presented at trial from which a jury could conclude that Hartmarx had discriminated against Pierce because of his age.
The denial of a motion for judgment notwithstanding the verdict is a ruling of law subject to de novo review. The test is whether the evidence presented at trial, taken in the light most favorable to the prevailing party, was sufficient to allow a reasonable juror to arrive at the challenged verdict. Schwimmer v. SONY Corp. of America, 677 F.2d 946, 951-52 (2d Cir.), cert. denied, 459 U.S. 1007, 108 S.Ct. 362, 74 L.Ed.2d 398 (1982). We believe that there was evidence presented from which a reasonable juror could find that Hartmarx denied Pierce the job of General Manager because of his age.
Hartmarx claims that in order to be held liable for age discrimination for failing to promote Pierce to General Manager, that position must have been available at the time Pierce applied for it. This unremarkable proposition is clearly correct. See, e.g., Marshall v. Airpax Elecs., 595 F.2d 1043, 1044-45 (5th Cir.1979) (where position already filled there is no claim for discriminatory denial of position). Hartmarx claims that the undisputed evidence shows that Pierce did not apply for the job when it was available.
Hartmarx claims that the decision as to Kiszka’s eventual successor was made in late 1983 and that Pierce did not apply for the position at that time. However, there was evidence that the 1983 decision was only tentative, that Van Berg’s interim performance had been less than spectacular, and that Hartmarx management revisited the decision after Kiszka announced his retirement and considered at least one other individual for the position. The jury could reasonably have concluded that the company made the final decision as to Kisz-ka’s replacement in 1986 after Pierce made known his interest in filling the vacancy.
The company claims that Pierce clearly did not apply for the position of General Manager in 1986. Although Pierce admittedly did not fill out a formal application for the General Manager’s position, “whether a formal application needs to be made for a high-level executive position is a factual question dependent on the particular institutional structure and practices of the employer.” Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.1981). There was evidence before the jury that there was no such formal application procedure in the Hartmarx organization and that Pierce’s desire for the position of General Manager was communicated to Hartmarx management by Pierce himself and by Kiszka. Moreover, there was evidence that Hartmarx gave some perfunctory consideration to Pierce in making its final decision. The evidence in this regard was sufficient to support the jury’s verdict.
2. Jury Instructions
a. Pretext
Hartmarx requested a jury instruction that the plaintiff has the burden of proving by a preponderance of the evidence that defendants’ stated reasons for their actions were merely a pretext for age discrimination. The court refused to give this instruction, stating that pretext was not a part of the case.
Hartmarx relies on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which established shifting burdens of production on the parties to an intentional employment discrimination case. McDonnell Douglas held that once a plaintiff establishes a prima facie case of employment discrimination by demonstrating that an adverse employment decision was made in circumstances giving rise to an inference of improper discrimination the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its actions. Id. at 802, 93 S.Ct. at 1824; Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Once this burden is met, the plaintiff must demonstrate that the proffered justification is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Hartmarx argues on appeal that the jury should have been told that Pierce had the burden of proving that the reorganization was a pretext for age discrimination. This argument entirely misapprehends the nature of Pierce’s claim. Pierce does not claim that the elimination of his job was discriminatory. He claims that the refusal to appoint him to the open General Manager position was motivated by his age. There was no need for Pierce under this theory to show that the reorganization was pretextual, and therefore the failure to give such an instruction to the jury was not error.
The task of the jury in an age discrimination case is to determine whether the challenged employment decision would have been the same but for the plaintiff’s age. Hagelthorn v. Kennecott Corp., 710 F.2d 76, 83 (2d Cir.1983). The judge’s instructions adequately apprised the jury of this task.
b. Willfulness
Hartmarx also contends that the judge did not properly instruct the jury on the issue of whether the company had willfully violated the ADEA. The ADEA provides for double damages when the employer willfully violates its provisions. 29 U.S.C. § 626(b). The judge instructed the jury not to consider the issue of willfulness unless and until it determined that the company had intentionally used age as a factor in making the decision not to hire Pierce as General Manager of Tripler. The judge told the jury that if they made such a determination they were next to determine whether the company had knowledge that using age in such a manner violated the ADEA. Therefore, in order to find a willful violation, the jury had to find that the company intentionally engaged in conduct that it knew to violate the ADEA. Under any acceptable interpretation of “willful,” such conduct qualifies.
In Trans World Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Court resolved a split among the circuits concerning the quantum of knowledge necessary for a willful violation of the ADEA. The Court held that an employer has willfully violated the ADEA when it “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Id. at 126, 105 S.Ct. at 624. The Court rejected a proposed standard that would have found an employer guilty of a willful violation whenever the employer knew of the potential applicability of the ADEA. Id. at 127-28, 105 S.Ct. at 624-25. The Court reasoned that such a broad standard “would result in an award of double damages in almost every case,” a result not intended by Congress. Id. at 128, 105 S.Ct. at 625.
Hartmarx argues that the same result will occur if we sanction the jury charge in this case. Hartmarx requested an instruction that would have allowed the jury to consider its good faith. However, in this trial there was no evidence of good faith. This was not a disparate impact case, where the defendant could claim ignorance of the correlation between its selection mechanism and age. Hartmarx did not claim that age was a bona fide occupational qualification, as in Thurston, nor did it claim that it did not know that Pierce was covered by the ADEA. Where a party presents no evidence to support a particular theory of his case, he has no right to a jury instruction on that point. City of New York v. Pullman Inc., 662 F.2d 910, 917 (2d Cir.1981), cert. denied sub nom. Rockwell Int’l Corp. v. City of New York, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982). The jury found that Hartmarx intentionally judged Pierce’s qualification for the promotion by his age, and that it knew that to do so violated the ADEA. Therefore, Hartmarx “knew... its conduct was prohibited by the ADEA.” Thurston, 469 U.S. at 126, 105 S.Ct. at 624. We do not believe that this jury reached a result not contemplated by Congress.
3. Evidence of the Wallachs Job Offer
Hartmarx attempted before trial to have evidence of the subsequent job offer it made to Pierce ruled admissible. The district judge refused to allow the evidence, and Hartmarx contends on appeal that this disallowance was reversible error.
Hartmarx argued that the evidence was relevant for two purposes. First, Pierce’s rejection of the job offer purportedly showed that Pierce had failed to take reasonable steps to mitigate his damages, thus limiting his claim for back pay. Second, evidence of the job offer made in September 1986 allegedly was relevant to Hart-marx’s state of mind in May when it denied Pierce the General Manager position. Pierce opposed the introduction of the evidence, contending that the offer took place in the course of settlement negotiations and thus was inadmissible under Fed.R.Evid. 408. The district court held a hearing and determined that, because the offer was not “unambiguously unconditional,” the evidence was not admissible for either purpose proposed by Hartmarx. The district court did not address the Rule 408 issue.
In order to show a failure to mitigate damages evidence of the failure must first be admissible. Fed.R.Evid. 408 states:
Evidence of {1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence, otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
(emphasis added). Evidence that demonstrates a failure to mitigate damages goes to the “amount” of the claim and thus, if the offer was made in the course of compromise negotiations, it is barred under the plain language of Rule 408. Under Fed.R.Evid. 104(a) preliminary factual questions concerning the admissibility of evidence, such as whether an offer was made in the course of settlement negotiations, are to be determined by the court. See Mundy v. Household Finance Corp., 885 F.2d 542, 546-47 (9th Cir.1989) (district court determines whether offer is within the scope of Rule 408).
It is often difficult to determine whether an offer is made “in compromising or attempting to compromise a claim.” See Brazil, Protecting the Confidentiality of Settlement Negotiations, 39 Hastings L.J. 955, 960-66 (1988). Both the timing of the offer and the existence of a disputed claim are relevant to the determination. Cassino v. Reichhold Chemicals, 817 F.2d 1338, 1342-43 (9th Cir.1987) (offer of severance pay conditioned on waiver of age discrimination claim made contemporaneous with discharge not protected by Rule 408), cert. denied, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 870 (1988); Big O Tire Dealers v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1372-73 (10th Cir.1977) (correspondence between parties prior to the filing of an action held “business communications” rather than “offers to compromise” and thus outside scope of Rule 408), cert. dismissed, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978). However, where a party is represented by counsel, threatens litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be presumed to be an offer within the scope of Rule 408. The party seeking admission of an offer under those circumstances must demonstrate convincingly that the offer was not an attempt to compromise the claim.
The district court here did not make an explicit determination as to the admissibility of the evidence of the job offer under Rule 408. However, later in imposing Rule 11 sanctions on Hartmarx the district court stated that the offer was conditioned on the release of Pierce’s claims, which is another way of saying that the job offer was an attempt to compromise a claim. Therefore, under the plain language of Rule 408, evidence of the job offer was not admissible to show Pierce’s failure to mitigate damages.
Hartmarx, however, urges us to look behind the language of Rule 408 to its purposes. The Advisory Committee on Proposed Rules stated that the exclusion of evidence of compromise offers “may be based on two grounds. (1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position.... (2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes.” Fed.R.Evid. 408, Notes of Advisory Committee on Proposed Rules. Hartmarx contends that neither of these policies would be advanced where, as here, it is the offeror seeking to introduce evidence of the offer. If the offeror is introducing the evidence, according to Hartmarx, we should not worry that the evidence will be unfairly viewed as a concession of weakness of the offeror’s position. Similarly, argues Hartmarx, parties will not be discouraged from free and frank settlement discussions by the knowledge that they may introduce their own statements at trial.
Hartmarx relies on a recent decision by the Supreme Court of Washington that supports its position. In Bulaich v. AT & T Information Sys., 113 Wash.2d 254, 778 P.2d 1031 (1989) (in banc), the court held that Washington’s Evidence Rule 408, which mirrors Federal Rule 408, did not bar admission of a job offer in similar circumstances. The court stated that “when the settlement offeror is the same party attempting to gain the admission of the settlement letter into evidence, the threat of admissibility should not be a deterrent to the articulation of a settlement proposal.” 778 P.2d at 1036. While the reasoning of Bulaich is attractive, we find it unpersuasive.
We believe that admission into evidence of settlement offers, even by the offeror, could inhibit settlement discussions and interfere with the effective administration of justice. As the circumstances under which this issue arose in the district court suggest, widespread admissibility of the substance of settlement offers could bring with it a rash of motions for disqualification of a party’s chosen counsel who would likely become a witness at trial.
The issue of admissibility of the job offer here first came before the district court when the defendant’s attorney, Hartmarx General Counsel Carey Stein, requested from the court permission to withdraw as trial counsel because he intended to testify as to the substance of the job offer. Under the ABA Code of Professional Responsibility (DR 5-102(A)) and the ABA Model Rules of Professional Conduct (Rule 3.7), an attorney who ought to be called as a witness on behalf of his client must withdraw from representation at trial. Stein’s testimony would likely have necessitated rebuttal testimony from Pierce’s attorney, Debra Ras-kin, thus disqualifying her, and perhaps her entire firm, from representing Pierce at trial. Compare DR 5-102(A) (entire firm disqualified) with Rule 1.10 (disqualification of attorney under Rule 3.7 not imputed to members of firm).
It is common for attorneys in pending litigation to be involved in efforts to settle the case before trial actually commences. It is also common that adverse parties have different memories as to what was said at such a meeting. If the substance of such negotiations were admissible at trial, many attorneys would be forced to testify as to the nature of the discussions and thus be disqualified as trial counsel. Indeed, one commentator has noted that the advocate-witness rule itself “means that no lawyer in a law firm that a client wished to serve as trial counsel in threatened litigation could safely attend negotiation sessions designed to avert trial or to renegotiate a contractual arrangement that had become unravelled, for fear of becoming a potential witness.” Wolfram, Modern Legal Ethics (1986) at 379; see also MacArthur v. Bank of New York, 524 F.Supp. 1205, 1210 (S.D.N.Y.1981) (“Parties might well attempt to use this ethical rule, like others, as a litigation tactic.”).
This undesirable result is largely avoided by excluding evidence of settlement negotiations. Hartmarx’s interpretation of Rule 408 would discourage settlement discussions or encourage expensive and wasteful duplication of efforts by “negotiation counsel” and “trial counsel.”
We prefer to apply Rule 408 as written and exclude evidence of settlement offers to prove liability for or the amount of a claim regardless of which party attempts to offer the evidence. See Kennon v. Slipstreamer, Inc., 794 F.2d 1067, 1069 (5th Cir.1986) (“While a principal purpose of Rule 408 is to encourage settlements by preventing evidence of a settlement (or its amount) from being used against a litigant who was involved in the settlement, the rule is not limited by its terms to such a situation. Even where the evidence offered favors the settling party and is objected to by a party not involved in the settlement, Rule 408 bars admission of such evidence unless it is admissible for a purpose other than ‘to prove liability for or invalidity of the claim or its amount.’ ”) (citation omitted).
Hartmarx finally claims that, even if Rule 408 initially applies to the evidence of the job offer, the evidence is admissible under the “other purpose” exception contained in the final sentence of Rule 408. Hartmarx argues that the evidence bears on Hartmarx’s state of mind at the time it refused to hire Pierce as General Manager, and that the evidence under this theory is not for the purpose of proving “liability for or invalidity of the claim or its amount.”
In making this argument Hartmarx directs the court to Wrenn v. Secretary, Dep’t of Veterans Affairs, 918 F.2d 1073 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1625, 113 L.Ed.2d 721 (1991). In that case we held that an offer, to a plaintiff claiming race and age discrimination, of the same job that he claimed had been wrongly denied him, along with seniority and full back pay, supported the employer’s race- and age-neutral reason for failing to hire the plaintiff initially — namely, that it believed the plaintiff was not interested in the job that was available. In Wrenn, however, we did not address whether the evidence of the offer was admissible under Rule 408. There is no indication that the issue ever was raised in that case. Merely because evidence is relevant does not qualify it for admission under Rule 408.
In a disparate treatment employment discrimination case the determinative question is whether, at the time of the adverse employment action, the defendant was motivated by impermissible factors. This is precisely the issue on which Hartmarx seeks to introduce the evidence of the job offer. Such evidence on the merits of the case goes to “liability for or invalidity of the claim” and thus does not fall within the “other purpose” exception to excludability under Rule 408.
The evidence of the Wallachs job offer was properly excluded by the- district court, albeit for the wrong stated reason as we explain below. The evidence should have been excluded under Rule 408. We may affirm on any ground for which there is a record sufficient to permit conclusions of law, including a ground not relied on by the district court. See, e.g., Larsen v. NMU Pension Trust, 902 F.2d 1069, 1070 n. 1 (2d Cir.1990) (citing Alfaro Motors v. Ward, 814 F.2d 883, 887 (2d Cir.1987)).
4. Rule 11 Sanctions
Following trial, the district court imposed sanctions on Hartmarx under Fed.R.Civ.P. 11 for its pretrial attempts to admit evidence of the job offer. The court held that no attorney could in good faith have argued that the evidence was admissible. The district court therefore imposed attorney’s fees and a $3,000 fine on Hartmarx for this violation. Hartmarx appeals, claiming that its position in seeking the introduction of the evidence was not without merit and that the sanctions were therefore unwarranted. We agree.
Rule 11 states that every paper must be signed by a party or its attorney and that such a signature constitutes a certificate that “to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Fed.R.Civ.P. 11.
At the outset, we recognize that “an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). However, “this standard [does] not preclude the appellate court’s correction of a district court’s legal errors, e.g.,... relying on a materially incorrect view of the relevant law in determining that a pleading was not ‘warranted by existing law or a good faith argument’ for changing the law. An appellate court would be justified in concluding that, in making such errors, the district court abused its discretion.” Id. 110 S.Ct. at 2459; see In re Cohoes Industrial Terminal, 931 F.2d 222, 227 (2d Cir.1991).
The district court based its imposition of Rule 11 sanctions on several interrelated factors. First, the court noted that a previous judge in the same case had held as a matter of law that the communications concerning the offer did not constitute an “unambiguously unconditional” offer. Second, the court expressed its agreement with that ruling, stating that “any other conclusion would be absurd.” Finally, the court was influenced by differences between Stein’s testimony in a hearing to determine the admissibility of the evidence and his statements in his affidavits.
In applying the “unambiguously unconditional” standard in determining whether the evidence was admissible to show failure to mitigate damages, the prior judge applied an incorrect legal standard. A victim of age discrimination, like a victim of ethnic, sexual or religious discrimination, is under a duty to use reasonable efforts to mitigate his or her damages by seeking alternate employment and by accepting reasonable offers of employment. See Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 231, 102 S.Ct. 3057, 3065, 73 L.Ed.2d 721 (1982); Brooks v. Woodline Motor Freight, Inc., 852 F.2d 1061, 1065 (8th Cir.1988). An employer may toll the running of back pay damages by making an unconditional offer to the plaintiff of a job substantially equivalent to the one he or she was denied, even without an offer of retroactive seniority. See Ford Motor Co., 458 U.S. at 232, 102 S.Ct. at 3066.
While an unconditional offer of a job substantially similar to the one denied the plaintiff may, as a matter of law, toll back pay, the ultimate issue in a mitigation of damages question is whether the plaintiff acted reasonably in attempting to gain other employment or in rejecting proffered employment.
“Generally, it is the duty of the trier of fact to weigh the evidence to determine whether a reasonable person would refuse the offer of reinstatement.” Fiedler v. Indianhead Truck Line, 670 F.2d 806, 808 (8th Cir.1982). Whether an offer was unconditional for purposes of mitigation is similarly a question for the trier of fact. Cf. Bruno v. W.B. Saunders Co., 882 F.2d 760, 770 (3d Cir.1989) (evidence sufficient to support jury’s conclusion that offer was conditioned on release of job discrimination claim), cert. denied sub nom. CBS, Inc. v. Bruno, 493 U.S. 1062, 110 S.Ct. 880, 107 L.Ed.2d 962 (1990). The ambiguity of a job offer may affect its weight as evidence against a plaintiff, but not its relevance. There is no requirement that evidence of a job offer be “unambiguously” unconditional, as the district court required, in order to be admissible to show a failure to mitigate damages.
In imposing Rule 11 sanctions, the district court determined that no one could, in good faith, argue that the job offer was “unambiguously” unconditional. This is undoubtedly true. Under the proper legal standard, however, the question is whether any person could, in good faith, argue that the offer was simply unconditional regardless of the clarity with which its uncondi-tionality was expressed. The letters, affidavits and testimony provide evidence from which a trier of fact could find that Pierce could have accepted the Wallachs job without giving up his age discrimination claim. Although the context and some wording in the letters point in the other direction, there was sufficient evidence of uncondi-tionality on the record to support a good faith argument that there was a question of fact regarding the conditionality of the offer.
Finally, the district court relied on differences between Stein’s affidavits and his testimony at the hearing before Judge Wood. In two of his affidavits Stein had stated, in response to an allegation made by Raskin, that “I have never said ‘of course, we do not hire people who sue us.’ ” In the hearing before Judge Wood, Stein testified on direct examination that he had said “we do not ordinarily hire people who sue us.” (emphasis added). Although we do not condone petty word games by attorneys, given the applicable legal standard, the word “ordinarily,” if spoken, could dramatically change the meaning of the disputed sentence. A trier of fact could determine that Pierce’s was not the ordinary case and that the offer was in fact unconditional.
We note that although we hold today that the evidence of the job offer was ultimately inadmissible under Rule 408, Hartmarx had a good faith basis for arguing otherwise. “[T]o constitute a frivolous legal position for purposes of Rule 11 sanction, it must be clear... that there is no chance of success_ Thus, not all unsuccessful arguments are frivolous or warrant sanctions.” Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 681, 112 L.Ed.2d 673 (1991). The mere fact that the Supreme Court of the State of Washington, in Bulaich, 113 Wash.2d 254, 778 P.2d 1031 (1989), has held that such evidence is admissible despite Rule 408 is enough, in the absence of controlling authority to the contrary, to support a good faith argument for extension or modification of existing law.
Pierce had also requested that the court impose sanctions because of an improper purpose of the motion, i.e., to disqualify plaintiff’s attorney and her law firm by forcing Raskin to testify at trial. Even if there is an arguable legal and factual basis for a motion, an attorney or party violates Rule 11 by presenting that motion to the court for an improper purpose. See Cohen v. Virginia Elec. & Power Co., 788 F.2d 247, 249 (4th Cir.1986) (motion interposed solely for purposes of determining whether opponent would oppose motion, with preconceived plan to withdraw motion if opposed, violated Rule 11). Certainly, if the district judge found that Hartmarx sought to introduce the evidence in order to disqualify Pierce’s attorney then Rule 11 sanctions would have been appropriate. However, the judge made no such finding here and the sanctions cannot be upheld on appeal on that ground.
The imposition of Rule 11 sanctions was based largely on an incorrect legal standard regarding one basis for the admissibility of evidence regarding the job offer. Therefore, we hold that the district court abused its discretion in imposing sanctions on that basis and we reverse the order to that effect.
CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed in all respects except that the imposition
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_fedlaw | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Appellee, v. Norbert K. LACHMANN, Defendant, Appellant.
No. 72-1286.
United States Court of Appeals, First Circuit.
Argued Nov. 8, 1972.
Decided Nov. 29, 1972.
James R. McGowan, Providence, R. I., with whom Lester H. Salter, Providence, R. I., was on brief, for appellant.
Joseph C. Johnston, Jr., Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellee.
Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
ALDRICH, Senior Judge.
Defendant was found guilty by a jury of “willfully” failing to file timely income tax returns for the years 1964-67. 26 U.S.C. § 7203. The receipt of sufficient gross income to impose the obligation, and the failure to file in each of those years were conceded. The principal question on this appeal is whether the government’s burden as to willfulness is as the court charged, or is the heavier one for which he contends. Defendant has so confused the issues that a detailed opinion is called for.
In theory there are at least four alternative meanings of “willfully” as used in this statute. (1) Defendant knowingly and intentionally failed to file, but did not know he was legally obligated to do so. ' (2) Defendant knowingly and intentionally failed to file, knowing that he was supposed to file, but not with the purpose of misleading or defrauding the government of a tax. (3) Defendant knowingly and intentionally failed to file, knowing of the obligation, and with the express purpose of misleading or defrauding the government. (4) Defendant knew of the obligation to file, but failed to file, not by express design, but through inattention or negligence of some sort. The court adopted alternative (2), whereas defendant sought alternative (3). In spite of careful reading of his brief, only during oral argument did we learn that defendant has a still further complaint.
In oral argument defendant advanced the claim that the court’s quoted charge permitted the jury to convict if it found that his failure to file had been due to gross negligence. Asked where he made such a complaint to the district court, counsel pointed to the transcript where the following appears at the end of an extensive post-charge colloquy at the bench.
“[T]he defendant particularly objects to the failure to charge the language of bad purpose, to disobey the law, and the defendant also objects to the failure to charge the substance of paragraphs 7, 8, and 9, alternative 9 which is contained in the supplemental request for charge, 10, 11, 12, 17, 18, and that part of paragraph 20 having to do with the proposition that evidence of good character standing alone may be sufficient in and of itself to create a reasonable doubt of guilt. Thank you, Your Honor.”
Request No. 7 read as follows.
“7. Mere laxity, careless disregard of the duty imposed by law, or even gross negligence, unattended by the specific evil motive is not ‘willfulness’ as that term is used in this case.”
However, the colloquy as a whole shows that defendant’s articulated objections were not as to negligence versus gross negligence but were to the court’s adopting alternative (2), ante, rather than (3), for which defendant contended. It is true that by the time of the charge the court had heard counsel’s argument that defendant may have believed it was sufficient protection for the government to have the information returns filed by defendant’s payors, but this was not enough to put the court on notice that it should explain to the jury that there is a difference between negligence and gross negligence and then instruct it to exclude both.
It is clear under settled decisions that mere blanket enumeration of requests by number is, prima facie, not enough. Charles A. Wright, Inc. v. F. D. Rich Co., 1 Cir., 1966, 354 F.2d 710, cert. denied 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673. Fairness, the candor which counsel owes to the court, and the duty to avoid unnecessary new trials, desirable as that possibility may appear to a defendant as an anchor to windward, requires more. See discussion in Dunn v. St. Louis, San Francisco Ry. Co., 10 Cir., 1966, 370 F.2d 681. The court in the case at bar, with its attention fo-cussed on the debated application of alternative principle (3) as against (2) might only too naturally believe that what it said to exclude negligence or mistake was enough. Indeed, for defendant now to ask for the added distinction, if not pure afterthought, seems a classic example of a violation of the rule expressed in Wright v. Rich, supra, and its purpose.
We have devoted this amount of attention to what would otherwise be routine because of the circumstance that defendant’s brief relies on cases dealing with carelessness, alternative (4), although he is plainly arguing the merits of alternative (3), hereinafter referred to as defendant’s charge, as against (2). His basic thrust is the assertion that there is a “sharp split” in the circuits. In point of fact, such split as exists is almost exclusively over the correctness of alternative (4), an alternative which, except for defendant’s technical point we have just discussed, the court below expressly instructed the jury to reject.
We start with the case of Spies v. United States, 1943, 317 U.S. 492, 63 S. Ct. 364, 87 L.Ed. 418, where, in holding that a conviction for willfully attempting to defeat a tax was not made out by proof of willfully failing to file a return, the Court observed, "[m]ere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness [without proof of an intent to defraud].” 317 U.S. 497-498, 63 S.Ct. 367. This suggestion has been adopted in a number of circuits. United States v. Platt, 2 Cir., 1970, 435 F.2d 789; United States v. Ostendorff, 4 Cir., 1967, 371 F.2d 729, cert. denied 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229; United States v. MacLeod, 8 Cir., 1971, 436 F.2d 947, cert. denied 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647; United States v. Fahey, 9 Cir., 1969, 411 F.2d 1213, cert. denied 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422. Defendant cites three cases from the Third Circuit, and two from the Fifth which, he says, are to the contrary. They do not, however, afford him that comfort. It is true that in United States v. Hartman, 3 Cir., 1969, 409 F. 2d 198, the court spoke with approval of an extensive charge which included what we have called defendant’s charge. This it did in affirming a conviction, and without specific reference to any particular portion of the instructions. Such general endorsement, if a holding, is certainly not a strong holding that a reversal would have been required had some individual part been omitted. Even more remotely supportive of the defendant are his cases of United States v. Litman, 3 Cir., 1957, 246 F.2d 206, and Hargrove v. United States, 5 Cir., 1933, 67 F.2d 820. His two remaining citations, United States v. Vitiello, 3 Cir., 1966, 363 F.2d 240, and Haner v. United States, 5 Cir., 1963, 315 F.2d 792, do not touch defendant’s charge even indirectly. Rather, they reverse the district court for instructing that a finding of careless, as distinguished from deliberate, disregard was sufficient to convict. Without doubt there is a sharp split on that issue, see defendant’s cases of Abdul v. United States, 9 Cir., 1958, 254 F.2d 292, and United States v. Bishop, 9 Cir., 1972, 455 F.2d 612, cert. granted 409 U.S. 841, 93 S.Ct. 64, 34 L.Ed.2d 79, 1972, but that is irrelevant to the question before us. In point of fact, defendant has cited no court of appeals decision that has even criticized, let alone reversed, a district court for failure to give his requested charge.
As did the court below, we would reject the concept that in this criminal statute negligence or oversight is to be equated with willfulness. But we also reject defendant’s claim that the conscious intent that the government must show is an intent to defraud the fisc. Conduct chosen with that evil motive is separately provided for in section 7201 of the Code, and is made a felony. Presumptively there was a reason for section 7203. The very fact that Congress regarded violation of that section as a misdemeanor, only, at once supplies the reason and indicates that a less serious motive is addressed to. The Supreme Court’s suggestion in Spies, supra, had a valid base. We consider that the proper conclusion is drawn in those cases, cited ante, which hold that a deliberate intent to disobey the filing requirement is all that is needed.. Manifestly the government’s income tax structure is predicated, generally, on the filing of returns. To hold that every non-complier must go free unless the government establishes an affirmative intent to deprive the government of a tax known to be due would seriously interfere with its operation. We are not surprised that the advertised sharp split in the cases is not to be found.
Defendant’s remaining points may be readily disposed of. The court’s instruction with regard to character evidence while doubtless not as helpful to defendant as he might have liked, seems to us quite sufficient. See the discussion in Mannix v. United States, 4 Cir., 1944, 140 F.2d 250, 253-254. See also United States v. Ramzy, 5 Cir., 1971, 446 F.2d 1184, cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 544; United States v. Fayette, 2 Cir., 1968, 388 F.2d 728, 737; Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 746-747, cert. denied 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, 114, cert. denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597. To the extent that the opinion in appellant’s case of Oertle v. United States, 10 Cir., 1966, 370 F.2d 719, cert. denied 387 U.S. 943, 87 S.Ct. 2075, 18 L.Ed.2d 1329, may go further, we decline to follow it. So, too, was defendant’s request with respect to conflicting inferences adequately given. The court does not have to repeat its charge about burden of proof in every breath. It is hornbook law that precise language of a request, even though accurate, does not have to be adopted. Defendant’s contention that the evidence was insufficient to convict would appear to us frivolous even if the government’s burden were as defendant contends. Nor is this statute unconstitutional for vagueness.
Affirmed.
. The court charged,
“ ‘Willfully’ as used in this law means that the defendant acted voluntarily, purposefully, deliberately, and intentionally in failing to file his return — that is, at the time for filing in failing to do so he had a deliberate intention not to file the return which he knew ought to have been filed.
“This conduct, ladies and gentlemen, must be distinguished from inadvertently, negligently or mistakenly failing to file.
“If you find the defendant in failing to file acted inadvertently, acted negligently or mistakenly then, of course, your verdict must be not guilty. On the other hand, if you find the defendant acted voluntarily, purposefully, deliberately and intentionally in failing to file his returns, then of course if you also find the Government has proven beyond a reasonable doubt the other elements I instructed you on, your verdict must be guilty— and the other elements that have been agreed to. So willfulness is the issue for you to decide.” (Emphasis supplied.)
. Defendant did not testify.
. “Now let’s talk about one other thing, reputation. There was certain testimony that was introduced in this case on behalf of the defendant as to his previous reputation for honesty. Now, such evidence may be properly presented by the defendant charged with the commission of an offense in order to show that his character is such that in all likelihood he is not the type of person who would commit the offense or offenses with which he is charged. I instruct you that you should consider this evidence and give it such weight as you believe it deserves. This evidence concerning the defendant’s reputation for honesty should be considered by you, together with all the other evidence in this case, in determining the guilt or innocence of the defendant. If, when considered with all the other evidence presented during this trial, it creates a reasonable doubt in your mind as to the guilt of the defendant, you should find him not guilty. But I must caution you that the circumstance that an individual has borne a previous good reputation for honesty is not to be used as a reason for showing leniency to one whose guilt, after an honest, careful and intelligent consideration of all the evidence, including such evidence as to a good reputation for honesty, has been established by proof beyond a reasonable doubt.”
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_timely | A | 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 conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" 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".
INVESTORS SYNDICATE et al. v. SMITH et al.
No. 8881.
Circuit Court of Appeals, Ninth Circuit.
July 12, 1939.
Verne Dusenbery and Herbert L. Swett, both of Portland, Or., Stephen H. Boyles,, of Minneapolis, Minn., and Chas. W. Redding, of Portland, Or., for appellants.
S. J. Bischoff and Ralph A. Coan, both of Portland, Or., for appellees intervening creditors and trustee.
McCamant, Thompson, King & Wood, of Portland, Or., for appellee trustee.
Before WILBUR, MATHEWS, and HANEY, Circuit Judges.
HANEY, Circuit Judge.
The controversy here presents, broadly, the question as to whether the trustee of a debtor’s estate is entitled to rents accruing on property owned by the debtor, or whether the mortgagees are entitled to such rents after default by the debtor where the mortgages cover the rents after default as well as the real property in Oregon.
The apartment house properties herein were all owned and mortgaged by persons or corporations prior to the date when either the debtor, or its wholly owned subsidiary acquired them. The following is a list of the mortgaged property, with the names of the holders and the dates of the mortgages:
Property Date of Mortgage Mortgagee Nordell March 10, 1926.'Syndicate Resthaven May 16, 1926 44 Chapman Court November 10, 1926 44 Duplex (1) March 7, 1927 44 Duplex (2) March 22, 1927 44 Adele Manor March 30, 1928 Banks Charmaine July 17, 1928 44 Maravilla Court September 17, 1929 Metropolitan
The mortgages held by the Syndicate each contained a provision permitting the Syndicate to take possession of the mortgaged property, on default, collect the rents and apply them on the amounts due from the mortgagor, and on foreclosure, to have a receiver appointed to collect the rents, to be applied on any amounts due the mortgagee. Separate assignments were executed by the mortgagors of the Nordell, Resthaven and Chapman Court apartments, dated June 30, 1926, June 29, 1926, and November 20, 1926, respectively. By these assignments, the mortgagors assigned to the mortgagees, the rents and income from those particular apartments “to become operative upon any default” by the mortgagors.
The mortgages held by the Bank each contained a provision, assigning the rents to the Bank “from and after default”, to apply the same on any amounts due it, and upon foreclosure, to have a receiver appointed to collect the rents to be applied on any amounts due the mortgagee.
The mortgage held by the Metropolitan contained a provision giving the mortgagee the right to take possession of the mortgaged property, collect the rents, and apply the same upon any indebtedness due the mortgagee, and also provided that the mortgagee “shall have the right to the appointment of a receiver to collect the rents”.
On August 2, 1933, the Bank instituted separate suits to foreclose its mortgages in a state court and sought appointment of a receiver to collect the rents. On August 10, 1933, the state court denied the applications, but entered an order in each suit requiring the debtor, during the pendency of. the suit to render a verified monthly account and report “showing all rentals and other income received from said apartment house and all disbursements made on account thereof during said accounting period” and to pay into court monthly the net income.
On January 29, 1934, in the court below, an involuntary petition in bankruptcy was filed against 'the debtor, and on January 31, 1934, the lower court stayed all suits then pending against the debtor, until entry of an order of adjudication. On motion of the debtor, filed April 25, 1934, the court below, on that day, entered an order permitting the accounting and payment required by the state court order, and permitting prosecution of the foreclosure suits, with leave to the debtor to renew its application for a stay thereof.
The debtor paid the net rentals received into the registry of the state court until the month of June, 1934, when it filed a petition in the bankruptcy court seeking reorganization under § 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, which was superseded on July 11, 1934, by a supplemental answer to the same effect, to the involuntary petition filed. The court below, on July 11, 1934, made an order that the supplemental answer was filed in good faith, and referred the proceedings to a special master. In a hearing before the latter, appellants’ attorneys appeared and announced that they intended “to appear specially” for appellants, objected to the continuance of the debtor in possession of the properties, and to the plan of reorganization.
Upon recommendations of the special master, the bankruptcy court on August 13, 1934, appointed a trustee of the debtor’s estate. The trustee named did not qualify, and on September 10, 1934, a new trustee was appointed. The trustee was ordered to “keep separate accounts of all moneys coming into his possession from each of the several properties of the debtor or its said affiliate, and that the trustee’s accounts shall be kept so that all income and revenues received and expense incurred in the operation of each of such properties can at all times be ascertained and segregated.”
On October 22, 1934, the Syndicate filed a petition praying for leave to institute suits to foreclose the mortgages held by it, and for an order directing the trustee to pay it the net rentals, received from the properties upon which it held mortgages, as well as those which would be received. On October 24, 1934, Metropolitan filed a similar petition with respect to the mortgage held by it. On February 5, 1935, the Bank filed a petition for an order directing payment of the net rentals, received and to be received, to the state court. These petitions were referred to a special master who rendered a report on April 23, 1935, recommending that the petitions be granted. It is not clear, in the record, what action the court took with respect to this report..
On May 21, 1935, Metropolitan filed a motion for leave to institute foreclosure proceedings. The Syndicate filed a similar motion on June 3, 1935. The Bank filed a motion on June 5, 1935, for leave to proceed with its foreclosure suits. The first two motions were granted by orders dated June 13, 1935, and June 11, 1935, respectively. The record does not disclose what action, if any, was taken on the Bank’s motion. Since the permission it sought had already been granted, action on the motion was probably deemed unnecessary.
On October 9, 1935, the bankruptcy court entered an order that reorganization could not be effected, and appointed a trustee to liquidate the debtor’s estate, and ordered the trustee to “keep accounts of all moneys coming into his possession from each of the several properties of the debtors, and that the Trustee’s accounts shall be so kept that all income and revenues received and expenses incurred in the operation of all of said properties can at all times be ascertained and segregated”. On November 20, 1935, the bankruptcy court referred to a special master the hearing and determination of the claims to rent of appellants. On that date all the foreclosure suits above mentioned were still pending.
On November 14, 1936, the special master submitted his report, from which it appears that most of the indebtedness against and value of the apartments is:
Property Value Indebtedness Nordell $27,500.00 $24,807.05 Kesthaven 27,500.00 27,102.94 Chapman Court 47,000.00 50,558.00 Duplex (1) 5,000.00 5,120.78 Duplex (2) 5,000.00 5,123.44 Adele Manor no finding 48,500,00 5 Charmaine no finding 47,000.00 Maravilla Court no finding 28,153.29
With respect to the Nordell Apartment, the special master found: “During recent years, maintenance of the building has been neglected and the interior walls are in a bad state of repair”. Regarding the Rest-haven Apartment he found: “Maintenance of the building has been neglected and it is in a bad state of repair”. Regarding the Chapman Court Apartment he found: “Composition shingles on the roof are curled and not water tight, and the building generally is in a bad state of repair”. Regarding Duplex (1) he found: “For want of repainting, the exterior walls have worn down to the wood siding, and the building is in need of repairs”; and regarding Duplex (2) he found: “Maintenance of this building, and particularly the painting of it, has been neglected”. The condition of the remaining apartments was not mentioned by the special master, and he did not find whether or not waste had been committed. The parties have stipulated here there was uncontradicted evidence received by the special master that “no repairs were made except those necessary to make the rooms habitable”.
The special master considered 1 Or. Code, 1930, § 5-112, which is: “A mortgage of real property shall not be deemed a conveyance so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale according to law; provided, that nothing in this act contained shall be construed as any limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof, nor as prohibiting the mortgagee or pledgee of such rents and profits, or any trustee under a mortgage or trust deed from entering into possession of any real property, other than farm lands or the homestead of the mortgagor or his successor in interest, for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage or trust deed or other instrument creating the lien, nor as any limitation upon the power of a court of equity to appoint a receiver to take charge of such real property and collect such rents and profits thereof.” In the foregoing statute the proviso took effect May 28, 1927. Laws of Ore.1927, Ch. 310, p. 392. The preceding part of the statute has been in effect since 1862. (Deady, § 323; Hill, § 326; Bellinger & Cotton, § 336; Lord, § 335; Olson, § 335.)
The special master' concluded: (1) That although prior to the 1927 amendment, any agreement pledging the rents from the property mortgaged, as security for the mortgage debt, was void as against public policy, at the same time, it was the law that a receiver could be appointed to collect the rents, and if the mortgagee acquired possession of the mortgaged property, peaceably, he had the right to collect the rents; that the 1927 amendment did not change the law, but merely made clear what the intent was in 1862, but if it did, it was applicable to all mortgages anyway ; and that therefore the mortgages were all on the same footing; (2) that “the order of this court dated September 10, 1934, directing that rentals and income from the various properties should be kept segregated, the obedience of the respective mortgagees to have those rentals kept separate for their benefit, operated as a sufficient sequestration of those rentals to preserve the rights of the mortgagees in them”; (3) that the same result would be reached by the reasoning that the trustee was required to pay the taxes on the properties as a part of the operating expenses, and that it was his “surmise” that the taxes would be as much as the rentals collected. He, therefore, recommended that the rentals in the hands of the trustee should be held by the trustee for the benefit of appellants.
Exceptions to that report were filed, and the bankruptcy court, upon hearing, held:
“ * * * the proviso did not change the body of the statute which denies to a mortgagee any remedy for obtaining possession of the mortgaged premises. The mortgagor may still refuse possession, retain the rents and profits, and he will not be liable therefor * * * The law is unchanged that the mortgagor still has the right of possession, although a pledge or mortgage of the rents and profits may be enforced strictly in accordance with the statute upon equitable premises if full protection be given to intervening rights * * *
“These stipulations, therefore, under the law of Oregon, amount only to an equitable assignment of the rents and profits and as such may be applied between the original parties and their respective assignees. No right therein or lien thereon exists until the payments become due and are reduced to possession either by the mortgagee or the receiver of a court * * *
“Clearly enough, then, the mortgagees did not have any right to the rents, issues or profits under the Oregon law because they did not come into actual possession of the real property nor did they follow the specialized remedy set out in the amendment of 1927 to have the rents, issues and profits set aside for them.”
The court also held that the Bank had no greater rights than the other mortgagees because the state court did not take possession of the property through a receiver, but authorized the debtor to continue in possession.
With respect to its prior order requiring separate accounts to be kept, the court held that “it did not express any intention of giving any mortgagee an interest” in the rentals and that what the order required “was only sound bookkeeping”.
Finally, with respect to the question as to whether the rents should be sequestered, the court held : “ * * * The bankruptcy court should not be required to sequester rents in the hands of its trustee for the benefit of adverse parties suing the trustee in alien tribunals. The equitable assignments were inchoate * * * The courts in which they were foreclosed did not give the remedy prescribed by the statute and appoint a receiver * * * The mortgagees had no right otherwise to collect the rents and profits. Therefore, this court could not sequester the rents and profits for their benefit.” Accordingly, the court on June 8, 1938, made an order that all rents from real property subject to mortgages collected prior to sale on foreclosure, be held and disbursed by the trustee in payment of expenses of administration and general claims. This order is challenged.
At all times here pertinent,® § 24 of the Bankruptcy Act, 44 Stat. 664, 11 U.S. C.A. § 47, provided as follows:
“(a) The * * * circuit courts of appeal * * * are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.
“(b) The several circuit courts of appeal * * * shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law * * * the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised by appeal and in the form and manner of an appeal * * * to be allowed in the discretion of the appellate court.
“(c) All appeals under this section shall be taken within thirty days after the judgment, or order, or other matter complained of, has been rendered or entered.”
Being uncertain as to whether the order here complained of was appealable under § 24(a) or § 24(b), appellants applied both to the District Court and to this court for allowance of the appeal and obtained such allowance from both courts. The application to the District Court was filed on June 30, 1938. The District Court allowed the appeal on July 1, 1938. The application to this court was filed on July 2, 1938. This court allowed the appeal on July 19, 1938. Thus, it is seen, the appeal was allowed by the District Court, but not by this court, within the 30-day period specified in § 24(c).
Because the appeal was not allowed by this court within the 30-day period, appellees have moved to dismiss it. The motion is not well founded. The order complained of was made, not in the ordinary course of bankruptcy proceedings, but in a controversy arising in such proceedings. Compare Robert Moody & Son v. Century Savings Bank, 239 U.S. 374, 377, 34 S.Ct. 602, 58 L.Ed. 816. Hence, it was appealable under § 24(a), and the District Court was the proper court to allow the appeal. That court’s allowance of the appeal was timely and sufficient. Allowance by this court was unnecessary.
Even if, as contended by appellees, the order complained of was appealable only under § 24(b), still the appeal was in time. Application for its allowance having been filed in this court within the 30-day period, the fact that this court’s order allowing the appeal was not made until after the 30 days had expired is immaterial. The appeal was “taken”, within the meaning of § 24(c), when the application was filed. In re Foster Construction Corp., 2 Cir., 49 F.2d 213, 214; In re Hoffman, 7 Cir., 82 F.2d 58, 59; Price v. Spokane Silver & Lead Co., 8 Cir., 97 F.2d 237, 239.
A further ground of appellees’ motion is that appellants have joined in a single appeal, instead of taking three appeals, as appellees contend they should have done. We think appellees’ contention is without merit. The appeal is not from three orders, but from one only. Each appellant has, it is true, a separate interest, but all have a common interest in reversing, if they can, the order appealed from. The questions presented are common to them all. It was proper, therefore, for them to join in a single appeal. Crim v. Woodford, 4 Cir., 136 F. 34, 36. The motion should be denied.
Appellees’ contention that the assignments of error are too vague to raise any question for review is rejected. We think the assignments are sufficient.
Appellants contend that they had a right to the rents and profits after default by the debtor, and that they also had the right to obtain them by taking action'in the bankruptcy proceedings.
Rights of Mortgagees Before 1927
At common law a mortgage was regarded as a conditional conveyance, by which the legal title to the estate vested in the mortgagee, who, upon execution of the mortgage, was entitled to the possession and enjoyment of the 'property, unless agreed to the contrary. See 19 R.C.L. §§ 86, 89.
The code provision made vast changes, however. In Oregon a mortgage on real estate conveys no legal or equitable title or interest in the property covered by the mortgage. It merely creates a lien, which constitutes security for the debt, and grants to the mortgagee the right, upon default by the mortgagor, to have the property sold to satisfy the debt secured. Onfy upon foreclosure and sale, can the mortgagor be divested of his title and possession. In Teal v. Walker, 111 U.S. 242, 252, 4 S.Ct. 420, 28 L.Ed. 415, it was held that in Oregon a mortgagee is not entitled to the rents and profits of the mortgaged property, even after default, unless he obtains possession of the property, and that a stipulation in á mortgage providing that the mortgagor would surrender possession of the mortgaged property to the mortgagee upon default was void as against the public policy of Oregon as expressed in the statute above quoted. That case, by analogy, compels a like holding with respect to a stipulation regarding the fruits of possession, i. e., that upon default, the rents and profits would be applied on the debt secured by the mortgage.
Of course, a mortgagor may voluntarily relinquish possession of the mortgaged property to the mortgagee, and if he does, the mortgagee is entitled to retain possession as against the mortgagor, and those claiming under him, until the debt is paid, and “may bring an action of trespass as though the title were vested in him unconditionally”. Johnson v. Pacific Land, Co., 84 Or. 356, 358, 164 P. 564, 565. A mortgagee in possession must account for, and apply, the rents and profits on the debt secured; is entitled to reimbursement for keeping the property in repair, but “cannot collect pay for services rendered for himself” in attending the mortgaged property, or obtain “reimbursement for permanent improvements which he installs.”
With respect to appointment of a receiver in a mortgage foreclosure suit, in Couper v. Shirley, 9 Cir., 75 F. 168, 170, it was held that a mortgagor and mortgagee have no power to bind the courts by a stipulation for the appointment of a receiver to collect and apply on the debt secured by the mortgage, the rents and profits, and that a court had no authority to appoint a receiver pursuant to such a stipulation “independent of any equitable condition which might be shown to exist”. The Supreme Court of Oregon has never passed on that precise point. Although it was intimated in Caro v. Wollenberg, 68 Or. 420, 428, 136 P. 866, that a contrary rule existed, in State ex rel. Nayberger v. McDonald et al., 128 Or. 684, 695, 274 P. 1104, the case of Couper v. Shirley, supra, was cited.
The general law regarding appointment of a receiver is not at all clear. 2 Ore. Code Ann., 1930, § 32-702 provides:
“A receiver may be appointed by the court in the following cases:
“1. Provisionally, before judgment or decree, on the application of either party, when his right to the property, which is the subject of the action, suit or proceeding, and which is in the possession of an adverse party, is probable, and the property or its rents or profits are in danger of being lost or materially injured or impaired. * * * ”
It is extremely doubtful that such provision authorized appointment of a receiver on behalf of a mortgagee pending foreclosure, because it required three things; (1) A probable “right to the property”; (2) possession of such property m the adverse party; and (3) danger that the property or its rents and profits would be lost or materially injured or impaired. As seen, the mortgagee had no right to the mortgaged property, but only a right to have it sold. See also: State ex rel. Nayberger v. McDonald et al., 128 Or. 684, 696, 274 P. 1104 as explained in McKinney v. Nayberger et al., 138 Or. 203, 219, 295 P. 474, 2 P.2d 1111, 6 P.2d 228, 229.
However, Brayton & Lawbaugh v. Monarch Lumber Co., 87 Or. 365, 389, 169 P. 528, 536, 170 P. 717, indicates that the court had power to appoint receivers in cases other than those prescribed in the statute mentioned. It is there said: “ * * * it may be conceded that the general rule is that a mortgagee rightfully in possession of mortgaged property cannot be ousted by the appointment of a receiver at the instance of the mortgagor or one claiming under the mortgagor without first paying or 'tendering the amount due on the mortgage debt; but this rule like • most general rules has its exceptions. If the mortgagee is committing waste and is insolvent, equitable relief may be necessary. * * * ” If a mortgagee, rightfully in possession, may not be ousted by the appointment of a receiver, except in certain cases, then it would seem as logical to say that a mortgagor, rightfully in possession, may not be ousted, except in the same cases. We think this is an expression that a receiver might be appointed in either case. See also: Kountze v. Omaha Hotel Co., 107 U.S. 378, 395, 2 S.Ct. 911, 27 L.Ed. 609; Grant v. Phoenix Mut. Life Ins. Co., 121 U.S. 105; 117, 7 S.Ct. 841, 30 L.Ed. 905; Gordon v. Washington, 295 U.S. 30, 37, 55 S.Ct. 584, 79 L.Ed. 1282; annotations: 26 A.L.R. 38, 41; 36 A.L.R. 609; 55 A.L.R. 533; 87 A.L.R. 1008; 111 A.L.R. 730.
The courts are not in harmony as to the sufficiency of the grounds for the appointment of a receiver. One fule seems to be that a receiver will be appointed where the security is inadequate. 26 A.L.R. 49. Another is that there must be not only inadequacy of the security but also insolvency of the mortgagor. 26 A.L.R. 50. Still another is that there must be not only inadequacy of the security and insolvency of the mortgagor but also waste or danger of loss or destruction of the property. 26 A.L.R. 55. The latter rule is the one which we think to be the rule in Oregon as a necessary conclusion of the language in Brayton & Lawbaugh v. Monarch Lumber Co., supra. See, also, Kountze v. Omaha Hotel Co., supra, 107 U.S. at page 395, 2 S.Ct. 911, 27 L.Ed. 609; Grant v. Phoenix Mut. Life Ins. Co., 121 U.S. 105, 117, 7 S.Ct. 841, 30 L.Ed. 905.
From the foregoing it can be seen that a mortgagee did not acquire the right of possession of the mortgaged premises, or the right to the rents and profits therefrom, even though stipulations therefor upon default were contained in the mortgage; and that a receiver could not lawfully be appointed in a mortgage foreclosure suit unless the equitable grounds mentioned above existed, even though the mortgagor and mortgagee stipulated in the mortgage, that a receiver might be appointed upon default.
•Effect of the 1927 Amendment
What has been said refers to the law under the statute as it existed before amendment. Such statute will be hereafter called the code provision, and the part added in 1927 will be called the amendment.
The amendment provided that the code provision should not “be construed as any limitation upon the right of the owner of real property to mortgage or pledge the rents and profits thereof”. It does not say that if such a mortgage were made, the mortgagee could enforce the same, or specify how it could be enforced. Should those rights be implied? It is clear that such provision permitted the mortgagee to obtain a mortgage or pledge of the rents and profits of the mortgaged property (excepting, possibly, farm lands and homesteads — a question we do not decide).
The illegality of such a provision being removed, what is the effect of a stipulation in a mortgage pledging or assigning the rents and profits? It is generally held that such a stipulation does not of itself transfer the rents and profits, but merely creates a lien which becomes effective only when the mortgagee either obtains possession, or has a receiver appointed to collect the rents. American Bridge Co. v. Heidelbach, 94 U.S. 798, 800, 24 L.Ed. 144; Teal v. Walker, supra, 111 U.S. at page 248, 4 S.Ct. 420, 28 L.Ed. 415; Freedman’s Saving & Trust Co. v. Shepherd, 127 U.S. 494, 502, 8 S.Ct. 1250, 32 L.Ed. 163; 41 C.J. 628, § 605. We are required to apply the law of Oregon. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 205, 58 S.Ct. 860, 82 L.Ed. 1290. In the absence of a decision by the Supreme Court of Oregon settling the meaning of the amendment, we think the law in Oregon is as stated above.
Since the mortgage or pledge of the rents and profits did not enable the mortgagee to obtain them, the second and third provisions of the amendment sought to enable the mortgagee to obtain them. The second provision of the amendment provided that the code provision should not be construed “as prohibiting the mortgagee * * * from entering.into possession of any real property* other than farm lands or the homestead of the mortgagor * * * for the purpose of operating the same and collecting the rents and profits thereof for application in accordance with the provisions of the mortgage * * Thus, with respect to real property other than farm lands and homesteads, the mortgagee is no longer prohibited from taking possession of the mortgaged property. If a mortgagor stipulated in the mortgage that the mortgagee might have possession of the mortgaged property upon default, the amendment permitted the agreement to be carried into effect, regardless of the code provision. It was apparently implied that a mortgagee might obtain possession of the property as against the occupant by the ordinary possessory remedy conferred on one having the right to possession.
In the event that upon default a mortgagee elected to foreclose without obtaining possession, then the third provision of the amendment created an alternative remedy to obtain the rents and profits, by appointment of a receiver, which accomplished the same purpose. Apparently, the only requirement for appointment of a receiver, is that “such” rents and profits must be mortgaged or pledged. If they are not, then the only power to appoint a receiver is that existing on the equitable grounds mentioned above.
We hold that with respect to real property other than farm lands and homesteads, the code provision was so modified by the amendment that the owner of real property other than farm lands and homesteads may lawfully mortgage or pledge the rents and profits of his real property; that a mortgagor of real property other than farm lands and homesteads may lawfully stipulate in the mortgage that the mortgagee is entitled to possession upon default by the mortgagor, and if he does, the mortgagee may recover possession by an appropriate remedy; that if a mortgagor mortgages or pledges the rents and profits of real property, other than farm lands and homesteads, a court may appoint a receiver to collect them, by virtue of that fact alone, in a foreclosure suit; and in all other respects the code provision is still effective.
' Application of the 1927 Amendment
Since the mortgages to the Bank and the Metropolitan were all executed after the effective date of the amendment, it is of course applicable to them. The mortgages executed to the Syndicate were all executed prior to the effective date of the amendment.
It is contended that the amendment is applicable to the Syndicate mortgages, because it merely clarified the code provision. We think the amendment deliberately changed the law. It is further contended that the amendment related only to remedy or procedure, but we think it dealt with substantive rights. The Syndicate, by the mortgages, obtained no rights to the possession of the mortgaged property, or to the rents and profits therefrom, because the stipulations in that respect were invalid when made. The statute indicates no intention of validating such stipulations previously made. Giving the amendment prospective effect, as we should (Libby v. Southern Pacific Co., 109 Or. 449, 452, 219 P. 604, 220 P. 1017), it is applicable only to mortgages subsequently executed. The provision regarding appointment of a receiver is effective only if there is a mortgage or pledge of the rents and profits, which are absent in the Syndicate mortgages because the stipulations intended for that purpose were invalid.
Effect of the Bankruptcy Proceedings
Regarding the conflict between state and federal courts, the rule has been stated to be: “when a court of competent jurisdiction takes possession of property through its officers, this withdraws the property from the jurisdiction of all other courts which, though of concurrent jurisdiction, may not disturb that possession; and that the court originally acquiring jurisdiction is competent to hear and determine all questions respecting title, possession, and control of the property”. Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 737, 51 S.Ct. 270, 272, 75 L.Ed. 645. Accordingly, where a mortgagee sues in the state court to foreclose its mortgage, and that court takes possession of the mortgaged property, the subsequent bankruptcy does not deprive the state court of jurisdiction to proceed. Isaacs v. Hobbs Tie & Timber Co., supra. On the other hand, if bankruptcy proceedings are commenced prior to the foreclosure suit, then the bankruptcy court has custody of the property, through the trustee who has actual or constructive possession (Isaacs v. Hobbs Tie & Timber Co., supra, 737), and the mortgagee may not proceed to foreclosure in a state court without consent of the bankruptcy court. Straton v. New, 283 U.S. 318, 321, 51 S.Ct. 465, 75 L.Ed. 1060; Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 78 L.Ed. 1020.
As can be seen from the above, the intervention of the bankruptcy removed the right of the mortgagees to obtain possession of the mortgaged property, or to foreclose and obtain the appointment of a receiver whereby they could obtain the rents, without the consent of the bankruptcy court. In the event that the bankruptcy court did not consent to foreclosure, the question immediately arises as to whether the mortgagees are deprived of any remedy to obtain the rents. While there is ground for holding in the affirmative, in that in general, one purpose of the bankruptcy act is to abolish or restrict remedies, this court has held that where the bankruptcy court grants a petition of the mortgagee to sequester rents and profits, the mortgagee, is entitled to such rents from the date of the filing of the petition, which necessarily implies that the bankruptcy court has power to make such an order. American Trust Co. v. England, 9 Cir., 84 F.2d 352. Compare: In re Hotel St. James Co.,. 9 Cir., 65 F.2d 82; Duparquet Huot & Moneuse Co. v. Evans, 297 U.S. 216, 222, 56 S.Ct.. 412, 80 L.Ed. 591.
The present controversy, however, does not concern the power to do so, but the propriety of its exercise. Upon what circumstances should the bankruptcy court order a sequestration of the rents? Without attempting to mark the limits, we say that such power ought not to be exercised in cases where the mortgagee would have greater rights in bankruptcy than he would have, had bankruptcy not intervened. Whether there are or should be other limits on the exercise of the power, it is unnecessary here to determine because appellees assume that if the mortgagees have a right to the rents and profits the bankruptcy court should enforce such right.
Insofar as the Syndicate is concerned, its application to sequester the rents and profits was properly denied, otherwise it would be placed in a better position by the intervening bankruptcy
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
HOFFMAN, TRUSTEE v. CONNECTICUT DEPARTMENT OF INCOME MAINTENANCE et al.
No. 88-412.
Argued April 19, 1989
Decided June 23, 1989
White, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 105. Scalia, J., filed an opinion concurring in the judgment, post, p. 105. Marshall, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 106. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 111.
Martin W. Hoffman, pro se, argued the cause and filed a brief for petitioner.
Deputy Solicitor General Merrill argued the cause for the United States. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Bolton, and Christopher J. Wright. Clarine Nardi Riddle, Acting Attorney General of Connecticut, argued the cause for the state respondents. With her on the brief were Kenneth A. Graham, Joan E. Pilver, and Carl J. Schuman, Assistant Attorneys General.
Michael E. Friedlander, Charles R. Work, and Seth D. Greenstein filed a brief for Inslaw, Inc., as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Arizona, by Robert K. Corbin, Attorney General, and Anthony B. Ching, Solicitor General; and for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Robert J. Ruiz, Solicitor General, and James C. O’Connell and Barbara L. Greenspan, Special Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Warren Price III of Hawaii, Linley E. Pearson of Indiana, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Robert M. Spire of Nebraska, John P. Arnold of New Hampshire, Lacy H. Thornburg of North Carolina, Nicholas J. Spaeth of North Dakota, T. Travis Medlock of South Carolina, Charles W. Burson of Tennessee, James Mattox of Texas, R. Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin.
Justice White
announced the judgment of the Court and delivered an opinion in which The Chief Justice, Justice O’Connor, and Justice Kennedy join.
The issue presented by this case is whether § 106(c) of the Bankruptcy Code, 11 U. S. C. § 106(c), authorizes a bankruptcy court to issue a money judgment against a State that has not filed a proof of claim in the bankruptcy proceeding.
Petitioner Martin W. Hoffman is the bankruptcy trustee for Willington Convalescent Home, Inc. (Willington), and Edward Zera in two unrelated Chapter 7 proceedings. On behalf of Willington, he filed an adversarial proceeding in United States Bankruptcy Court — a “turnover” proceeding under 11 U. S. C. § 542(b) — against respondent Connecticut Department of Income Maintenance. Petitioner sought to recover $64,010.24 in payments owed to Willington for services it had rendered during March 1983 under its Medicaid contract with Connecticut. Willington closed in April 1983. At that time, it owed respondent $121,408 for past Medicaid overpayments that Willington had received, but respondent filed no proof of claim in the Chapter 7 proceeding.
Petitioner likewise filed an adversarial proceeding in United States Bankruptcy Court on behalf of Edward Zera against respondent Connecticut Department of Revenue Services. Zera owed the State of Connecticut unpaid taxes, penalties, and interest, and in the month prior to Zera’s filing for bankruptcy the Revenue Department had issued a tax warrant resulting in a payment of $2,100.62. Petitioner sought to avoid the payment as a preference and recover the amount paid. See 11 U. S. C. § 547(b).
Respondents moved to dismiss both actions as barred by the Eleventh Amendment. In each case the Bankruptcy Court denied the motions to dismiss, reasoning that Congress in § 106(c) had abrogated the States’ Eleventh Amendment immunity from actions under §§ 542(b) and 547(b) of the Bankruptcy Code and that Congress had authority to do so under the Bankruptcy Clause of the United States Constitution, Art. I, § 8, cl. 4. Respondents appealed to the United States District Court, and the United States intervened because of the challenge to the constitutionality of § 106. The District Court reversed without reaching the issue of congressional authority. 72 B. R. 1002 (Conn. 1987). The court held that § 106(c), when read with the other provisions of § 106, did not unequivocally abrogate Eleventh Amendment immunity.
The United States Court of Appeals for the Second Circuit affirmed the District Court. 850 F. 2d 50 (1988). The Court of Appeals concluded that the plain language of § 106(c) abrogates sovereign immunity “only to the extent necessary for the bankruptcy court to determine a state’s rights in the debtor’s estate.” Id., at 55. The section does not, according to the Court of Appeals, abrogate a State’s Eleventh Amendment immunity from recovery of an avoided preferential transfer of money or from a turnover proceeding. The Court of Appeals specifically rejected petitioner’s reliance on the legislative history of § 106(c) because that expression of congressional intent was not contained in the language of the statute as required by Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). Because the actions brought by petitioner were not within the scope of § 106(c), the court held that they were barred by the Eleventh Amendment.
The Second Circuit’s decision conflicts with the decisions of the Third Circuit in Vazquez v. Pennsylvania Dept. of Public Welfare, 788 F. 2d 130, 133, cert. denied, 479 U. S. 936 (1986), and the Seventh Circuit in McVey Trucking, Inc. v. Secretary of State of Illinois, 812 F. 2d 311, 326-327, cert. denied, 484 U. S. 895 (1987). We granted certiorari to resolve the conflict, 488 U. S. 1003 (1989), and we now affirm.
Section 106 provides as follows:
“(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose. -
“(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate.
“(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity—
“(1) a provision of this title that contains ‘creditor,’ ‘entity,’ or ‘governmental unit’ applies to governmental units; and
“(2) a determination by the court of an issue arising under such a provision binds governmental units.” 11 U. S. C. § 106.
Neither § 106(a) nor § 106(b) provides a basis for petitioner’s actions here, since respondents did not file a claim in either Chapter 7 proceeding. Instead, petitioner relies on § 106(c), which he asserts subjects “governmental units,” which includes States, 11 U. S. C. § 101(26), to all provisions of the Bankruptcy Code containing any of the “trigger” words in § 106(c)(1). Both the turnover provision, § 542(b), and the preference provision, § 547(b), contain trigger words — “an entity” is required to pay to the trustee a debt that is the property of the estate, and a trustee can under appropriate circumstances avoid the transfer of property to “a creditor.” Therefore, petitioner reasons, those provisions apply to respondents “notwithstanding any assertion of sovereign immunity,” including Eleventh Amendment immunity.
We disagree. As we have repeatedly stated, to abrogate the States’ Eleventh Amendment immunity from suit in federal court, which the parties do not dispute would otherwise bar these actions, Congress must make its intention “unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, supra, at 242; see also Dellmuth v. Muth, 491 U. S. 223, 227-228 (1989); Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 474 (1987) (plurality opinion). In our view, § 106(c) does not satisfy this standard.
Initially, the narrow scope of the waivers of sovereign immunity in §§ 106(a) and (b) makes it unlikely that Congress adopted in § 106(c) the broad abrogation of Eleventh Amendment immunity for which petitioner argues. The language of § 106(a) carefully limits the waiver of sovereign immunity under that provision, requiring that the claim against the governmental unit arise out of the same transaction or occurrence as the governmental unit’s claim. Subsection (b) likewise provides for a narrow waiver of sovereign immunity, with the amount of the offset limited to the value of the governmental unit’s allowed claim. Under petitioner’s interpretation of § 106(c), however, the only limit is the number of provisions of the Bankruptcy Code containing one of the trigger words. With this “limit,” § 106(c) would apply in a scattershot fashion to over 100 Code provisions.
We believe that § 106(c)(2) operates as a further limitation on the applicability of § 106(c), narrowing the type of relief to which the section applies. Section 106(c)(2) is joined with subsection (c)(1) by the conjunction “and.” It provides that a “determination” by the bankruptcy court of an “issue” “binds governmental units.” This language differs significantly from the wording of §§ 106(a) and (b), both of which use the word “claim,” defined in the Bankruptcy Code as including a “right to payment.” See 11 U. S. C. §101(4)(A). Nothing in § 106(c) provides a similar express authorization for monetary recovery from the States.
The language of § 106(c)(2) is more indicative of declaratory and injunctive relief than of monetary recovery. The clause echoes the wording of sections of the Code such as §505, which provides that “the court may determine the amount or legality of any tax,” 11 U. S. C. § 505(a)(1), a determination of an issue that obviously should bind the governmental unit but that does not require a monetary recovery from a State. We therefore construe § 106(c) as not authorizing monetary recovery from the States. Under this construction of § 106 (c), a State that files no proof of claim would be bound, like other creditors, by discharge of debts in bankruptcy, including unpaid taxes, see Neavear v. Schweiker, 674 F. 2d 1201, 1204 (CA7 1982); cf. Gwilliam v. United States, 519 F. 2d 407, 410 (CA9 1975), but would not be subjected to monetary recovery.
We are not persuaded by the. suggestion of petitioner’s amicus that the use of the word “determine” in the jurisdictional provision of the Code, 28 U. S. C. § 157(b)(1) (1982 ed., Supp. V), is to the contrary. Brief for INSLAW, Inc., as Amicus Curiae 10-11. That provision authorizes bankruptcy judges to determine “cases” and “proceedings,” not issues, and provides that the judge may “enter appropriate orders and judgments,” not merely bind the governmental unit by its determinations. Moreover, the construction we give to § 106(c) does not render irrelevant the language of the section that it applies “notwithstanding any assertion of sovereign immunity.” The section applies to the Federal Government as well, see 11 U. S. C. § 101(26) (defining “governmental unit” as including the “United States”), and the language in § 106(c) waives the sovereign immunity of the Federal Government so that the Federal Government is bound by determinations of issues by the bankruptcy courts even when it did not appear and subject itself to the jurisdiction of such courts. See, e. g., Neavear, supra, at 1204.
Petitioner contends that the language of the sections containing the trigger words supplies the necessary authorization for monetary recovery from the States. This interpretation, however, ignores entirely the limiting language of § 106(c)(2). Indeed, § 106(c), as interpreted by petitioner, would have exactly the same effect if subsection (c)(2) had been totally omitted. “It is our duty ‘to give effect, if possible, to every clause and word of a statute,’” United States v. Menasche, 348 U. S. 528, 538-539 (1955) (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883)), and neither petitioner nor his amicus suggests any effect that their interpretation gives to subsection (c)(2).
Finally, petitioner’s reliance on the legislative history of § 106(c) is.also misplaced. He points in particular to floor statements to the effect that “section 106(c) permits a trustee or debtor in possession to assert avoiding powers under title 11 against a governmental unit.” See 124 Cong. Rec. 32394 (1978) (statement of Rep. Edwards); id., at 33993 (statement of Sen. DeConcini). The Government suggests that these statements should be construed as referring only to cases in which the debtor retains a possessory or ownership interest in the property that the trustee seeks to recover, Brief for United States 20, and cites as an example this Court’s decision in United States v. Whiting Pools, Inc., 462 U. S. 198 (1983) (holding that the Internal Revenue Service could be required to turn over to bankrupt estate tangible property to which debtor retained ownership).
The weakness in petitioner’s argument is more fundamental, however, as the Second Circuit properly recognized. As we observed in Dellmuth v. Muth, 491 U. S., at 230, “[legislative history generally will be irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment.” If congressional intent is unmistakably clear in the language of the statute, reliance on committee reports and floor statements will be unnecessary, and if it is not, Atascadero will not be satisfied. 491 U. S., at 228-229. Similarly, the attempts of petitioner and his amicus to construe § 106(c) in light of the policies underlying the Bankruptcy Code are unavailing. These arguments are not based in the text of the statute and so, too, are not helpful in determining whether the command of Atascadero is satisfied. See 491 U. S., at 230.
We hold that in enacting § 106(c) Congress did not abrogate the Eleventh Amendment immunity of the States. Therefore, petitioner’s actions in United States Bankruptcy Court under §§ 542(b) and 547(b) of the Code are barred by the Eleventh Amendment. Since we hold that Congress did not abrogate Eleventh Amendment immunity by enacting § 106 (c), we need not address whether it had the authority to do so under its bankruptcy power. Cf. Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989). The judgment of the Second Circuit is affirmed.
It is so ordered.
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_appnatpr | 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.
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.
Esse Forrester O’BRIEN, joined by her husband, John L. O’Brien, and William F. O’Brien, Appellants, v. UNITED STATES of America, Appellee.
No. 24291.
United States Court of Appeals Fifth Circuit.
March 22, 1968.
Rehearing Denied June 3, 1968.
D. M. Wilson, Wilford W. Ñaman, Bryan, Wilson, Olson & Stem, Ñaman, Howell, Smith & Chase, Waco, Tex., for appellants.
William O. Murray, Jr., Asst. U. S. Atty., San Antonio, Tex., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Raymond N. Zagone, Attys., Dept, of Justice, Washington, D. C., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.
Before RIVES and GEWIN, Circuit Judges, and HANNAY, District Judge.
HANNAY, District Judge:
The proceedings below arose out of the exercise of the power of federal eminent domain. The condemned land consisted of some 87.78 acres out of a tract of 210.-65 acres owned by Appellants within the confines of the City of Waco, McLennan County, Texas. The purpose of the condemnation was the establishment of the Waco Reservoir Project in the Brazos River Basin in that locale of north central Texas.
The greater bulk of the taken land was for the purpose of extending the already existing adjacent lake. Included in this area was acreage on the outer periphery of the extended lake. This was taken for purposes necessary and incident to its use and control. No issue is presented here as to the right of the sovereign to take, subject to just compensation, this portion of the condemned land. An issue is presented as to the extent of acreage taken for the purpose of a necessary substitute road; the remaining question here involves the general issue of just compensation.
I.
The Appellants’ land comprised, and mainly consisted of, a promontory overlooking a portion of the old lake and the area below the lake. The lake, as extended by the condemnation, drove a two pronged salient into the promontory. The promontory pointed generally in a northerly direction. At its foot and along the water’s edge there was a road of sufficient width to accommodate two vehicles. (Emphasis added throughout). This was part of the old Lake Shore Drive. It extended from an area below the old dam which was to the east of Appellants’ property around .the northern edge of Appellants’ property and on westerly. The intended use of the condemned land necessarily inundated this old Lake Shore Drive as it crossed Appellants’ land. For the purpose of a substitute road, a relocated Lake Shore Drive, the government condemned approximately 9 acres of Appellants’ land. Approximately 6 of these acres were taken in fee; the remaining approximate 3 acres were taken as a perpetual and assignable easement. The 6 acres consist of a strip 100 feet in width. The 3 acres is a strip of 50 feet in width. It is adjacent to the 100 foot strip. The 100 foot strip was for immediate construction of new roadway. This road is of two lane .dimension. Transfer of the entire 9 acre strip to the City of Waco, which had received the condemned portion of the old Lake Shore Drive as a dedication from the landowners, was contemplated. There is nothing in the record to suggest that fulfillment of this purpose was ever other than a virtual certainty. Appellants complain that the taking of the entire 9 acre strip was unauthorized; that it exceeded the area embraced by the old road and was a design to enable the City of Waco to eventually construct a roadway of as many as four lanes.
As a general and fundamental principle, the exercise of the sovereign right of eminent domain is within the legislative power and mere questions of its range and extent in particular cases are ordinarily not subject to judicial correction and control. West Inc. v. United States, 5 Cir., 374 F.2d 218, 221, and authorities cited. Absent improper or corrupt subversion of legally delegated authority to define the extent of condemnation, this decision rests with the appropriate Executive officer concerned. West, Inc. v. United States, supra, at 222-223. There is no dispute that the taking here in question was for a valid public use. The Declaration of Taking by the Secretary of the Army states, inter lia:
“The public uses for which said land is taken are as follows: The said land is necessary adequately to provide for the construction and operation of a flood control project and for other uses incident thereto. The said land has been selected by me for acquisition by the United States for use in connection with the establishment of Waco Reservoir on the Bosque River in the Brazos River Basin, Texas, and for such other uses as may be authorized by Congress or by the Executive Order.”
There is no showing of prejudice to Appellants resulting from this taking for the new roadway. There is no specific issue of just compensation in respect to this particular item of land.
Appellants rely upon wording in the Flood Control Act of 1960, Title 33, U.S.C.A. Section 701r-1(b), amended in 1962. This amendment redesignated subsection (b) as subsection (c) and, by Appellants’ concession, did not otherwise alter the controlling statute in material parts.
Title 33, U.S.C.A. Section 701r-1(c) reads:
“For water resources projects to be constructed in the future, when the taking by the Federal Government of an existing public road necessitates replacement, the substitute provided will, as nearly as practicable, serve in the same manner and reasonably as well as the existing road. The head of the Agency concerned is authorized to construct such substitute roads to design standards comparable to those of the State, or, where applicable State standards do not exist, those of the owning political division in which the road is located, for roads of the same classification as the road being replaced. The traffic existing at the time of the taking shall be used in the determination of the classification. In any case where a State or political subdivision thereof requests that such a substitute road be constructed to a higher standard than that provided in the preceding provisions of this subsection, and pays, prior to commencement of such construction, the additional costs involved due to such higher standard, such Agency head is authorized to construct such road to such higher standard. Federal costs under the provisions of this subsection shall be part of the non-reimbursable project costs.”
The statute, read in its entirety, supports the action of the government rather than the complaint of the Appellants. An added consideration is the prospective need for maintenance. The ruling in Seneca Nation of Indians v. United States, 2 Cir., 338 F.2d 55, 57, certiorari denied, 380 U.S. 952, 85 S.Ct. 1084, 13 L.Ed.2d 969, is appropriate here:
“We see no reason to interfere with this reasonable exercise of delegated administrative discretion as to the amount of land required for the relocation of the road. Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). * * * as the District Court found, the increased highway requirements result in part from the * * * Project itself. Because the Secretary of the Army acted within his authority and reasonably, we affirmed the judgment.”
II.
The issue of compensation was submitted by the District Court to a Commission under Rule 71A(h), Federal Rules of Civil Procedure, in December of 1962.
The Commission submitted its first report on June 28, 1963. It is undisputed that the highest and best use of the property before the taking was residential subdivision. The valuations placed by the Appellants’ witnesses and those made by the witnesses for the government were at great variance. The two witnesses for the Appellant set the just compensation figure at $367,375.00 and $345,675.00 respectively. Two of the government’s witnesses were of the opinion that the property had been enhanced by the taking. The evidence of the third government witness was excluded by the Commission because “ * * * he had considered access to the property in fixing market value after the taking.” This question of access, and the consideration to be given to it, is the kernel of the issue now before the Court. The Commission’s recommendation at that time was that the property had a market value before taking of $420,000.00; that it had a market value after taking of $308,528.20; and that the difference and the amount of just compensation was $111,471.80.
The report was to be many times recommitted to the Commission before there was a final acceptance by the District Court. In their protracted course, the proceedings below were to transpire before three separate District Judges over a course of some four years and seven months. By final judgment entered August 16, 1966, the District Court accepted the Minority Commission’s report awarding compensation in the amount of $70,-224.00. The Majority Commission adhered to its original assessment from which, indeed, the minority had relented only after the second recommittal.
The power of a District Judge in reviewing the findings and recommendations of a Commission under Rule 71A (h), Federal Rules of Civil Procedure, is the same as its power over the findings of fact by a Master under Rule 53(e) (2), Federal Rules of Civil Procedure. United States v. Merz, 376 U.S. 192, 198-200, 84 S.Ct. 639, 11 L.Ed.2d 629.
Rules 71A(h) provides, inter alia:
“ * * * If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdivision (e) of Rule 58.”
Rule 53(e) (2), Federal Rules of Civil Procedure, provides, inter alia:
“ * * * In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. * * * The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
The rule of decision in this Circuit in Rule 71A (h) proceedings is that the Court of Appeals reviews the determination of the District Court rather than that of the Commission in applying the “clearly erroneous” standard to the finality of the prior findings of fact. United States v. Twin City Power Company of Georgia, 5 Cir., 253 F.2d 197; United States v. Tampa Bay Garden Apartments, Inc., 5 Cir., 294 F.2d 598; Parks v. United States, 5 Cir., 293 F.2d 482; United States v. 2,872.88 Acres of Land, etc., 5 Cir., 310 F.2d 775, modified in United States v. Merz et al., 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629.
Viewed upon the whole, but not without exception as hereafter to be shown, “the evidence before the commission met the standard of substantiality to withstand a reversal by the district court.” 310 F.2d, at 779. The record reflects that the topography of the taken land was characterized by ravines and crevices — a factor most likely adverse to residential development of the land. Increased water frontage of the remaining property unimpeded by the old Lake Shore Drive clearly touches upon the question of enhancement of value. The improved artery, the new Lake Shore Drive, could reasonably be said to have the same enhancing effect. It does but very little to diminish the increased new water frontage. Lastly, the valuation of what is in effect $800.00 for each acre taken, in light of the record and the applicable test of market value of the whole before and after the taking, is generally within the bounds of reasonableness.
III.
The area in which exception must be taken to the conclusion below is on the question of access, legal access, to the new roadway. This does not involve Appellants’ land that lies east of the new lake salient. This portion, in its present extent, remains adjacent to the Forrester Lane that was the easternmost boundary of Appellants’ property. Appellants’ land west of the new lake salient, however, was effectively landlocked by the project. Prior to the taking Appellants’ property had at least three access routes to adjacent roadways. All of these are now denied the western sector of Appellants’ land.
There is, it is true, evidence in the record that the City of Waco would, as a practical and prospective matter, make the new Lake Shore Drive available to newly created routes of access that may be established by the Appellants. This Court agrees with Appellants that there is a substantive distinction between this prospective practical accessibility on the one hand and accomplished legal access on the other. The District Court patently recognized this unsolved problem area in the case. In its third recommittal to the Commission the District Court directed the majority to specify the amount of severance damages, if any, that they attributed to the alleged loss of access. The majority responded with a specific finding of severance damages arising out of loss of access in the amount of $5,-000.00. This was based upon a government’s witness’ testimony that it would require $5,300.00 to build a road from the homesite on the west side to the new Lake Shore Drive. There was no existing road from this homesite to the new Lake Shore Drive. This homesite was located practically the entire depth of the property northward of the new Lake Shore Drive. The majority commission report was thus responsive to the Order of Recommittal.
The minority commission, in its previous report, had in effect stated that the question of access had been considered in its determination of just compensation in the amount of $70,224.80. In the same third Order of Recommittal the minority was directed to elaborate on the basis of its assessment with particular emphasis on the access issue. This point was emphasized in an amendment to the third Order of Recommittal. It stated in material part:
“It further appearing to the Court that if * * * the minority member should state that in the original report of the Commission he did not consider what the amount of severance damages, as such, attributable to the alleged loss of access would have been, he should make additional findings with respect to the following:
(d) Assuming that there was loss of access, what do you now consider would have been the amount of severance damages properly attributable to such loss of access giving the path followed and specifying the testimony or other evidence relied upon?”
There was, after all, a discrepancy of $41,247.80 between the original and eventual assessment of the Minority Commission.
The Minority Commission’s ensuing report, which was otherwise adequately detailed and reasoned, was non-responsive on the Court directed issue of severance damages arising from loss of access. The following quotation from this report, in addition to others that could be extracted from it, will amply demonstrate this fact:
“ * * * It is very difficult for me to assume that there was a loss of access. I cannot feature the Government’s spending so much money to build a road and then not letting the landowners use it. I do not believe that there is any evidence that says that the City or the Federal Government is going to deny access when the road is completed, I therefore, cannot answer the question asked by the Court: ‘Assuming that there was a loss of access, what do you now consider would have been the amount of severance damages properly attributable to such loss of access, giving the path followed and specifying the testimony or other evidence relied upon?’ The only way that I could consider that there would be no access, would be to disregard the testimony of the city officials and of Mr. John L. Smith of the Corps of Engineers, which I have set out in my report.”
This non-responsiveness by the Minority Commission on what may now be called the severance damage issue continued through the fourth Order of Recommittal and the minority’s answer, or lack of an answer, thereto. In this limited but material respect the minority not only neglects a material finding of fact but forecloses, on its own motion and erroneously, a question of law. This Court is of opinion that the Minority Commission provided no substantial basis for acceptance of his assessment in this limited respect. This deficiency may be treated in light of a responsive specific finding in the record on the issue of severance damages due to loss of access.
This Court is of the considered opinion that this litigation can and should be concluded by adding to the District Court’s determination of just compensation the specific finding in the record of severance damages due to loss of legal access, to wit, $5,000.00. United States v. Merz, supra; Rules 72A(h) and 53(e) (2), Federal Rules of Civil Procedure.
Accordingly, the judgment below is affirmed as modified herein and remanded to the District Court for proceedings consistent herewith.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_crmproc1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
The FOUNDING CHURCH OF SCIENTOLOGY OF WASHINGTON, D. C., INC., Appellant, v. NATIONAL SECURITY AGENCY et al.
No. 77-1975.
United States Court of Appeals, District of Columbia Circuit.
Argued March 27, 1978.
Decided May 15, 1979.
William A. Dobrovir, Washington, D. C., for appellant.
Michael F. Hertz, Atty., Dept, of Justice, Washington, D. C., with whom Earl J. Sil-bert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen., and Robert E. Kopp, Atty., Dept, of Justice, Washington, D. C., were on the brief, for appellee. Leonard Schait-man, Atty., Dept, of Justice, Washington, D. C., also entered an appearance for appel-lee.
Before TAMM and ROBINSON, Circuit Judges, and OBERDORFER, United States District Judge, United States District Court for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by SPOTTS-WOOD W. ROBINSON, III, Circuit Judge.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
The Founding Church of Scientology of Washington, D.C., Inc., the appellant, complained in the District Court of the refusal of the National Security Agency (NSA), the appellee, to release documents requested by appellant under the Freedom of Information Act. The court, relying upon an affidavit submitted by the agency, ruled that the materials solicited were protected from disclosure by joint operation of Exemption 3 of the Act and Section 6 of Public Law No. 86-36, and granted summary judgment in favor of NSA. We find that NSA failed to establish its entitlement to a summary disposition of the litigation. Accordingly, we reverse the judgment appealed from and remand the case for additional proceedings before the District Court.
I
NSA was created by order of the President in 1952 and endowed with a twofold mission. Its first major task is shielding the Nation’s coded communications from interception by foreign governments. Its second principal function, implicated by appellant’s document request, entails acquisition of information from electromagnetic signals and distillation of that information for assimilation by the intelligence community and national policymakers. As a part of the latter activity, NSA surreptitiously intercepts international communications by a variety of means.
In December, 1974, appellant sought access, pursuant to the Freedom of Information Act, to all records maintained by the Agency on appellant and the philosophy it espouses, as well as records reflecting dissemination of information about appellant to domestic agencies or foreign governments. Subsequently, appellant’s request was enlarged to embrace all references touching on L. Ron Hubbard, founder of the doctrine of Scientology. NSA’s reply was that it had not established any file pertaining either to appellant or Hubbard, and that it had transmitted no information regarding either to the entities specified in the demand. In March, 1975, appellant enumerated other Scientology organizations with respect to which pertinent records might exist. NSA again denied possession of any of the data sought.
In the course of Freedom of Information Act proceedings against the Department of State and the Central Intelligence Agency (CIA), appellant learned that NSA had at least sixteen documents concerning Scientology, appellant and related organizations. So advised, and armed with details solicited from CIA, NSA succeeded in locating fifteen of those items in warehouse storage, and obtained a copy of the sixteenth from CIA. Release of these materials was resisted, however, on grounds that they were protected from disclosure by provisos of the Act relating to national security matters and to confidentiality specifically imparted by other statutes.
In August, 1976, appellant commenced suit in the District Court to compel NSA to conduct a renewed search of its files and to enjoin any withholding of the materials desired. Appellant served numerous interrogatories on NSA inquiring into its efforts to locate responsive records, its classification of documents, and its correspondence with CIA with respect to the items theretofore uncovered. Purportedly to avoid revelation of functions and activities assertedly insulated by the Act from public scrutiny, NSA declined to supply more than minimal information in answer to the interrogatories.
Then, invoking Public Law No. 86-36 and Exemption 3 exclusively, NSA moved for dismissal of the action or alternatively for summary judgment in its favor. In support of the motion, NSA tendered the affidavit of Norman Boardman, its information officer, and offered to furnish a more detailed but classified affidavit for in camera inspection. Appellant vigorously opposed any ex parte submission and sought more extensive public airing of the issues. The District Court was of the view that Section 6 of Public Law No. 86-36 was an Exemption 3 statute foreclosing compulsory release of the sought-after data. In that light, and on the basis of Boardman’s public affidavit, the court ordered summary judgment for NSA. From that action, this appeal was taken.
II
Appellant begins with a challenge to the District Court’s holding that the sixteen documents admittedly retained by NSA enjoy a protected status. Appellant then complains of the court’s failure to probe more thoroughly NSA’s protestations respecting possession of other relevant material. In pressing the first point, appellant concedes that Section 6 of Public Law No. 86-36 is a law bringing Exemption 3 into play but claims inadequacies in the agency’s showing, upon which the District Court awarded summary judgment. More particularly, appellant contends that the Board-man affidavit lacked sufficient detail to enable an informed determination as to whether disclosure of any or all of the sixteen items would illuminate agency activities of which the public was not already aware. We, too, believe that Section 6 is an Exemption 3 statute and that NSA’s affidavit did not furnish a satisfactory basis for testing the exemption’s applicability to the data appellant seeks.
A
As originally enacted, Exemption 3 authorized the withholding of information “specifically exempted from disclosure by statute.” The exemption was amended in 1976, however, “to overrule [a] decision of the Supreme Court” which had sanctioned rejection of a records request on grounds that nondivulgence was authorized by a statute conferring a “broad degree of discretion” on an agency to conceal data “in the interest of the public.” Under the exemption as amended, materials are deemed “specifically exempted from disclosure by statute” only if the “statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Subsection (A) reaches only those laws that mandate confidentiality “absolute[ly] and without exception”; it condones no decisionmaking at the agency level. Subsection (B), on the other hand, does contemplate some exercise of administrative discretion in closely circumscribed situations, “but its unmistakeable thrust. is to assure that basic policy decisions on governmental secrecy be made by the Legislative rather than the Executive branch.”
The provision on which NSA relies to trigger Exemption 3 into operation is Section 6 of Public Law No. 86-36, which states that with exceptions inapplicable in this case
nothing in this Act or any other law (including, but not limited to, the [Classification Act of 1949]) shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof, or of names, titles, salaries, or number of the persons employed by such agency.
Plainly, Section 6 insulates the information specified from mandatory divulgence though it does not purport to bar voluntary disclosure by NSA itself. Since it countenances administrative discretion to publicize or maintain secrecy, Section 6 lacks the rigor demanded by Subsection (A) of Exemption 3. But appellant acknowledges, and the District Court ruled, that, within the meaning of Subsection (B), Section 6 “refers to particular types of matters to be withheld.” More specifically, in material part the provision protects information laying open “the organization or any function of the National Security Agency,. [or] the activities thereof.”
Our examination of Section 6 and its legislative history confirms the view that it manifests a “congressional appreciation of the dangers inherent in airing particular data,” and thus satisfies the strictures of Subsection (B). The section was enacted at the request of the Department of Defense. The Department’s immediate aim was termination of personnel oversight by the Civil Service Commission, which would subject highly sensitive agency activities to inspection. Exclusion from the Classification Act, administered by the Civil Service Commission, was thought to be “consistent with the treatment... accorded other agencies engaged in specialized or highly classified defense activities.” The purpose and scope of the bill proposed was broader, however, for, as the Department explained, “[t]he unique and highly sensitive activities of the Agency require extreme security measures.” Accordingly, the bill incorporated provisions “exempting the Agency from statutory requirements involving disclosures of organizational. matters which should be protected in the interest of national defense.”
The Senate report focused on relieving NS A from the requirements of the Classification Act. But it also echoed the Department’s concern over publicity of NSA’s “very highly classified functions vital to the national security.” The statutory language similarly evinces a purpose to shield the matters enumerated from indiscriminate public consumption. Section 6 ordains unequivocally that “nothing in this Act or any other law (including, but not limited to, the [Classification Act]) shall be construed to require... disclosure.”
Thus, Section 6 embodies far more than “a vague apprehension that [the] Agency might someday fall heir to sensitive information.” It reflects instead a congressional judgment that, in order to preserve national security, information elucidating the subjects specified ought to be safe from forced exposure. The basic policy choice was made by Congress, not entrusted to administrative discretion in the first instance. It follows that Section 6 is a statute qualifying under Exemption 3.
Even the most casual reading of Section 6 suggests, however, a potential for unduly broad construction. On the one hand, the section embraces personnel matters of a fairly restricted character and susceptible of little interpretation. Literal application of those terms might expectably honor the congressional policy underlying Section 6 without doing violence to the Freedom of Information Act’s “overwhelming emphasis upon disclosure.” On the other hand, Section 6 encompasses “any information with respect to the activities” of NSA, and that implicates superficially the gamut of agency affairs. To be sure, the legislation’s scope must be broad in light of the agency’s highly delicate mission. But a term so elastic as “activities” should be construed with sensitivity to the “hazard[s] that Congress foresaw.” As we have observed in an analogous context, “[t]o fulfill Congress’ intent to close the loophole created in Robertson, courts must be particularly careful when scrutinizing claims of exemptions based on such expansive terms.”
NSA has not based its repulsion of appellant’s informational request upon an illusory need to safeguard “secrets” either familiar to all or unrelated to its operational modes. In the agency s words, its “claim.. is not made with respect to its general functions or activities”; it seeks instead to halt any divulgence of “information in such detail so as to let potential adversaries know which specific communications circuits are not secure, and which communications, depending on the circuits through which they were transmitted, the Agency is likely to possess or not possess.” That position, if substantiated, would undercut appellant’s reliance on the Senate’s far-ranging disclosure of NSA’s operations in the course of recent investigations of gross illegalities on the part of intelligence agencies, for the Senate inquiries seemingly stopped short of revealing specifics about the agency’s intelligence capabilities, which still warrant stringent protection from compulsory exposure. With this background, then, we proceed to examine whether the District Court adequately undertook to adjudicate the applicability of Section 6 to the materials appellant seeks.
B
Congress has directed that in reviewing agency rejections of Freedom of Information Act requests, “the court shall determine the matter de novo, and may examine the contents of. agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b).” Very importantly, “the burden is on the agency to sustain its action.” The legislative history of the Act explains that “the Government should be given the opportunity to establish by means of testimony or detailed affidavit that the documents are clearly exempt from disclosure,” and that the court should “accord substantial weight to an agency’s affidavit.” But, as in the recent past we
have noted, “conclusory and generalized allegations of exemptions” are unacceptable; if the court is unable to sustain nondivulgence on the basis of affidavits, in camera inspection may well be in order. As Congress has declared, “in many situations” review of requested materials in chambers “will plainly be necessary and appropriate.”
We think the District Court failed in this litigation to conduct a true de novo review consonant with the foregoing principles, and that summary judgment was precipitously entered. The showing made by NSA consisted wholly in the public affidavit of Norman Boardman, its information officer. Boardman avowed that the materials requested “were acquired in the course of conducting lawful signals intelligence activities,” and that “[rjelease of any record or portion thereof would disclose information about the nature of NSA’s activities including its functions.” He further explained:
I have determined that the records involved in this case and specific information about those records such as numbers, dates, and type of information contained therein cannot be disclosed, because to do so would jeopardize national security functions the Agency was established to perform.... Disclosure of specific information which may be related to a specific individual or organization. in the context of [the agency’s] singular mission would reveal certain functions and activities of the NSA which are protected from mandatory disclosure by Section 6 of Public Law 86-36.
Boardman additionally maintained that his averments were as detailed as security constraints allowed:
It is not possible to describe in a publicly filed affidavit the material in and dates of the documents held by NSA, because this would... enable a knowledgeable person to determine the nature of the documents... and thus disclose intelligence sources and methods... In short, any further factual public description of material would compromise the secret nature of the information and would compromise intelligence sources and methods.
In our view, the Boardman affidavit was far too conclusory to support the summary judgment awarded NSA. The agency acknowledged to the District Court, and has represented to us on appeal, that the documents in issue have been suppressed, not on account of their “substantive content,” but because release to appellant would reveal “vital national security information concerning the organization, function and communication intelligence capabilities of the NSA.” But the Boardman affidavit furnishes precious little that would enable a determination as to whether the materials withheld actually do bear on the agency’s organization, functions or faculty for intelligence operations. Rather, it merely states, without any elucidation whatever, that compliance with appellant’s demand would reveal “certain functions and activities... protected from mandatory disclosure by Section 6,” and would “jeopardize national security functions the agency was established to perform.” Barren assertions that an exempting statute has been met cannot suffice to establish that fact, yet one will search the Boardman affidavit in vain for anything more.
Not only does the Boardman statement fail to indicate even in the slightest how agency functions might be unveiled, but it also lacks so much as guarded specificity as to the “certain functions and activities” that might be revealed. From aught that appears, the sixteen documents may implicate aspects of the agency’s operations already well publicized. Suppression of information of that sort would frustrate the pressing policies of the Act without even arguably advancing countervailing considerations.
Before this court, NSA has endeavored to remedy the deficiencies of its presentation in the District Court. As we have noted, the agency has identified as the subject of its concern the publication of information in such detail that its interception capabilities with respect to particular communications circuits might be exposed. Were NSA able to establish its claim in that regard, immunization by Section 6 at least to that extent would be assured. But the appropriate occasion for such an undertaking was during the proceedings before the District Court, in the context of de novo consideration of appellant’s demand.
Aside from their bearing on the substantive decision ultimately to be made, NSA’s averments on appeal have significant ramifications for the conduct of the litigation. In particular, they compellingly evince the feasibility of further elaboration of the agency’s public affidavit. We acknowledge, of course, that public explanations of a determination to withhold need not “contain factual descriptions that... would compromise the secret nature of the information,” but we see no reason why NSA’s open and informative representations to this court could not have been encouched in the initial affidavit And we suspect that the public record can be developed further still without untoward risk to the agency’s statutory mission were it to exercise sufficient ingenuity.
The importance of maximizing adversary procedures in suits such as this cannot be gainsaid. Participation of the information-requesters to the fullest extent feasible is essential to the efficacy of de novo re-examination of the agency’s action. Not insignificantly, the parties and the court, if sufficiently informed, may discern a means of liberating withheld documents without compromising the agency’s legitimate interests. To that end, discovery may be employed to develop more fully the basis of nondisclosure or the lack of it. As we have also said, “[t]he court may. require the agency to submit under protective seal affidavits that are more detailed than those made available to the plaintiff,” and after scrutiny thereof “the court may order release of any portions of these in camera affidavits that it determines will present no danger of unauthorized disclosure.” These salutary devices were abruptly aborted in the case at bar by unquestioning reliance upon the conclusory Boardman affidavit.
It is much too soon to tell whether NSA can establish its claims by more detailed public or classified affidavits, or whether in camera review of the controverted documents themselves will become essential to the resolution proper. What is clear, however, is that the Boardman affidavit was inadequate to discharge the burden firmly placed by Congress on agencies that would withhold records in the face of proper Freedom of Information Act requests. Indeed, the District Court’s uncritical acceptance of the affidavit deprived appellant of the full de novo consideration of its records-request to which it is statutorily entitled. Insofar as the sixteen documents admittedly withheld are concerned, this litigation must return to the District Court.
Ill
Appellant raises a second issue on this appeal. It concerns NSA’s claimed inability to locate pertinent documents in addition to the sixteen it is known to now have in hand. More precisely, appellant argues that under the circumstances the agency’s single affidavit and limited interrogatories-responses claiming thoroughness in its searches did not suffice to meet its burden in that regard; additional discovery was imperative, we are told, to ensure that all relevant records have been unearthed. We agree that NSA did not demonstrate the unavailability of other materials sufficiently to entitle it to summary judgment.
Appellant’s first request, made in December, 1974, extended to all documents bearing on its activities and on transmission of information about appellant to other agencies, governments and individuals. That demand was soon broadened to include items relating to appellant’s founder. In January, 1975, NSA informed appellant that it had neither established a file or record on these subjects nor passed on any information of either sort. This response, according to the Boardman affidavit, was largely “based on negative results of searches conducted at my request by the NSA organizations having files that may reasonably have contained information or records of the kinds requested.” On five subsequent occasions appellant specified additional subjects and submitted further details that might aid in locating pertinent materials. In each instance, Boardman reported, agency units “that could be reasonably expected to contain records of the kind described” were instructed to search their files, and supposedly “thorough searches” repeatedly failed to ferret out data of the kind demanded.
Subsequently, appellant learned in the course of discovery in a Freedom of Information Act proceeding against the Department of State and the Central Intelligence Agency that sixteen documents encompassed by appellant’s request had been provided to CIA by NSA and that NSA had advised against their release. Once informed of that development, NSA contacted CIA to obtain identifying details; and an ensuing search uncovered fifteen of the sixteen which, Boardman said, “were found in warehouse storage, not retrievable on the basis of subject matter content.” NSA later obtained a copy of the sixteenth from CIA.
Beyond revelations affording this much light, the Boardman affidavit contained little else material to the processing of appellant’s several requests, and NSA’s replies to appellant’s interrogatories were almost totally uninformative in that respect. They do explain that searches were made by departments in which sought-after materials expectably might repose, and that the organization of the agency’s files precluded retrieval on the basis of information furnished by appellant; and averments superficially similar did pass muster in the first of our recent Goland decisions. However, the competence of any records-search is a matter dependent upon the circumstances of the case, and those appearing here give rise to substantial doubts about the caliber of NSA’s search endeavors. More specifically, they pose the question whether further search procedures were available and within the agency’s ability to utilize without expending a whit more than reasonable effort. Summary judgment, then, was improper because an issue of material fact— the adequacy of the search — was apparent on the record.
The Boardman affidavit informs us that “[t]here is no central index to all of the Agency’s files. Some files have records in alphabetical order by name, title, or subject matter. Other files are in chronological order; of these, only some, not all, have indexes by name, title, or subject matter of the records they contain.” In no way, however, did Boardman attempt to relate these characteristics of NSA’s general filing system to the particular searches conducted for appellant. All the affidavit says, though over and over, is that almost always the quests were in vain, and that, we believe, does not satisfactorily dispel the questions arising in the present situation. The fact that nothing pertinent is found on a file search might suggest, of course, that nothing pertinent was on file, but here there is a countervailing circumstance arguing powerfully the other way.
Despite searches in some number, fifteen responsive documents concededly in NSA’s possession were passed by, and but for help from another intelligence agency seemingly would never have come to light. NSA tells us that its “files... are oriented to subjects of foreign intelligence interests and are not structured to permit retrieval by subjects of the type included in [appellant’s] Freedom of Information Act request.” NSA adds that “[t]he fifteen records found in warehouse storage [were] not retrievable on the basis of subject matter content. Only the identifying data supplied by the CIA enabled NSA to locate copies of the records here.” The difficulty with this attempted explanation is that it generates more problems than it solves.
On the one hand NSA states that some of its files are indexed or alphabetically arranged “by name, title, or subject matter” —details appellant supplied profusely — and on the other hand it declares that its files “are not structured to permit retrieval by subjects of the type included in [appellant’s] requests.” And notwithstanding the latter representation, which would appear to immediately doom any search whatsoever for appellant, NSA professes to have conducted several, and to have done so “thoroughly.” On a broader scale, since NSA’s prime mission is to acquire and disseminate information to the intelligence community, it seems odd that it is without some mechanism enabling location of materials of the type appellant asked for, particularly with identifying details as extensive as those furnished. Even absent other modes of subject-matter classification, it is not at all apparent why NSA might not have searched on the basis of “subjects of foreign intelligence interests” likely to be involved. Presumably, CIA was able to identify the fifteen documents on clues no different from those provided NSA by appellant and, in turn, to identify them for NSA; just why NSA could not have done that on its own is hardly evident from what NSA has offered thus far. If there was no other way, just why NSA did not resort to this process of cross-communication with CIA with respect to other documents demanded by appellant is not at all clear. NSA has never claimed that the search procedures it employed were the only methodology feasible and, everything considered, it has not yet eliminated an unavoidable inference that its technique may have left something to be desired.
Lest we forget, the District Court disposed of this litigation by summary judgment. It is well settled in Freedom of Information Act cases as in any others that “[sjummary judgment may be granted only if the moving party proves that no substantial and material facts- are in dispute and that he is entitled to judgment as a matter of law.” It is equally settled in federal procedural law that
[t]he party seeking summary judgment has the burden of showing there is no genuine issue of material fact, even on issues where the other party would have the burden of proof at trial, and even if the opponent presents no conflicting evi-dentiary matter. “[T]he inferences to be drawn from the underlying facts. must be viewed in the light most favorable to the party opposing the motion.”
So, to prevail in a Freedom of Information Act suit, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.”
When the agency “has not previously segregated the requested class of records production may be required only ‘where the agency [can] identify that material with reasonable effort.’ ” And, of course, in adjudicating the adequacy of the agency’s identification and retrieval efforts, the trial court may be warranted in relying upon agency affidavits, for these “are equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt.” To justify that degree of confidence, however, supporting affidavits must be “ ‘relatively detailed’ and nonconclusory and must be submitted in good faith.” Even if these conditions are met the requester may nonetheless produce countervailing evidence, and if the sufficiency of the agency’s identification or retrieval procedure is genuinely in issue, summary judgment is not in order.
NS A did not shoulder the burden cast upon summary-judgment movants by these salutary principles. Giving appellant the benefit of the inferences favorable to its cause, the record in its nebulous state simply does not establish the absence of a triable issue of fact — the adequacy of the searches NS A made. To accept its claim of inability to retrieve the requested documents in the circumstances presented is to raise the specter of easy circumvention of the Freedom of Information Act. Few if any requesters will be better informed than appellant on the particulars of data that may have been obtained clandestinely by a governmental intelligence agency. To be sure, an agency is not “ ‘required to reorganize its [files] in response to’ ” a demand for information, but it does have a firm statutory duty to make reasonable efforts to satisfy it. If the agency can lightly avoid its responsibilities by laxity in identification or retrieval of desired materials, the majestic goals of the Act will soon pass beyond reach. And if, in the face of well-defined requests and positive indications of overlooked materials, an agency can so easily avoid adversary scrutiny of its search techniques, the Act will inevitably become nugatory. In the situation before us, undiscriminating adoption of NSA’s ill-elucidated assertions of thoroughness in its searches would threaten to excuse it substantially from the operation of the Act.
We conclude, then, that the case warranted a more exhaustive account of NSA’s search procedures than it advanced. That reckoning is now due, and to the extent practicable it should be made on the public record. Following that, it may well become necessary for the District Court to entertain in camera affidavits in order to assess de novo whether NSA has met its burden. The end result of that degree of attention to the problem by the litigants and the court may be origination of search procedures at once efficacious and reasonable. The Freedom of Information Act summons at least a conscientious effort in that direction.
The summary judgment for NSA is reversed. The case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
. Pub.L.No.89-487, 80 Stat. 251 (1966), codified by Pub.L.No.90-23, 81 Stat. 55 (1967), as amended by Government in the Sunshine Act, Pub.L.No.94-409, § 5(b)(3), 90 Stat. 1247 (1976), codified at 5 U.S.C. § 552 (1976) (hereinafter cited as codified).
. 5 U.S.C. § 552(b)(3) (1976).
. Pub.L.No.86-36, § 6, 73 Stat. 63 (1959), codified at 50 U.S.C. § 402 note (1976), quoted in text infra at note 25.
. Founding Church of Scientology v. NSA, 434 F.Supp. 632 (D.D.C.1977).
. Memorandum from President Harry S. Truman to the Secretary of State and the Secretary of Defense, “Communications Intelligence Activities” (Oct. 24, 1952). See S.Rep.No.755, 94th Cong., 2d Sess. 736 (1976). NSA is a separately organized agency within the Department of Defense, and is controlled by the Secretary of Defense.
. Exemption 1, 5 U.S.C. § 553(b)(1) (1976), immunizes from compulsory disclosure information that is
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]
As the District Court did not predicate the summary judgment on this exemption, we do not consider its applicability here. See text infra at notes 9-10.
. Exemption 3, 5 U.S.C. § 552(b)(3) (1976), quoted in text infra at note 19.
. See notes 6-7 supra.
. Quoted in text infra at note 25. Initially, NSA also advanced 18 U.S.C. § 798 (1976) and 50 U.S.C. § 403(d)(3) (1976) as Exemption 3 statutes. For a discussion of these provisions in the context of litigation against NSA, see Baez v. NSA, 76-1921 (D.D.C. April 7, 1978). NSA’s summary judgment motion and the District Court’s decision, however, rested only on Pub.L.No.86—36. We limit our consideration accordingly.
. Quoted in text infra at p. note 19.
. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp. at 633.
. Id.
. See text supra at note 6.
. Discussed in Part III infra.
. 5 U.S.C. § 552(b)(3) (1976).
. H.R.Rep.No.1441, 94th Cong., 2d Sess. 14 (1976) (conference report), referring to Administrator v. Robertson, 422 U.S. 255, 95 S.Ct. 2140, 45 L.Ed.2d 164 (1975).
. Administrator v. Robertson, supra note 16, 422 U.S. at 266, 95 S.Ct. at 2148, 45 L.Ed.2d at 174.
. 49 U.S.C. § 1504 (1976), providing that, upon objection of any person, agency officials “shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.”
. 5 U.S.C. § 552(b)(3) (1976).
. 122 Cong.Rec. H9260 (daily ed. Aug. 31, 1976) (remarks of Representative Abzug).
. American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 415 & n.33, 574 F.2d 624, 626 & n.33 (1978) (discussing legislative history).
. Id. at 417, 574 F.2d at 628 (footnote omitted).
. Pub.L.No.86-36, 73 Stat. 63 (1959) (“[t]o provide certain administrative authorities for the National Security Agency”), as amended, 50 U.S.C. § 402 note (1976).
. 5 U.S.C. § 654 (1958), repealed by Pub.L. No.86-626, 74 Stat. 427 (1960).
. Pub.L.No.86-36, § 6, 73 Stat. 64 (1959), in 50 U.S.C. § 402 note (1976).
. Founding Church of Scientology v. NSA, supra note 4, 434 F.Supp. at 633.
. See text supra at note 19. Concurring in this view are Baez v. NSA, supra note 9; Kruh v. GSA, 421 F.Supp. 965, 967-968 (E.D.N.Y. 1976).
. See text supra at note 25.
. American Jewish Congress v. Kreps, supra note 21, 187 U.S.App.D.C. at 417, 574 F.2d at 628.
. Letter from Donald A. Quarles, Acting Secretary of Defense, to Richard M. Nixon, President of the Senate (Jan. 2, 1959), included in S.Rep.No.284, 86th Cong., 1st Sess. 2-3 (1959).
. Id. at 3 (letter).
. See note 24 supra.
. S.Rep.No.284, supra note 30, at 3 (letter); see id. at 2 (text of report).
. Id. at 3 (letter).
. Id. (letter).
. Id. at 1-2 (text of report).
. Id. at 1 (text of report).
. See text supra at note 25.
. American Jewish Congress v. Kreps, supra note 21, 187 U.S.App.D.C. at 417, 574 F.2d at 628.
. Accord, Baez v. NSA, supra note 9; Kruh v. GSA, supra note 27, 421 F.Supp. at 967-968.
. “[N]ames, titles, salaries, or number of the persons employed by [the] agency.” See text supra at note 25.
. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Compare Baker v. CIA, 188 U.S.App.D.C. 401, 580 F.2d 664 (1978), in which we construed literally § 7 of the Central Intelligence Agency Act of 1949, ch. 227, § 7, 63 Stat. 211 (1949), codified at 50 U.S.C. § 403g (1970), which exempted “from the provisions of section 654 of Title 5, and the provisions of any other law which requires the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency... We noted, however, that to require that sought-after personnel material be in fact linked with intelligence, security, sources or methods would render § 403g “mere surplusage, since such a showing would necessarily bring the requested information within the purview of § 403(d)(3) [see note 46 infra] and thereby immunize it from disclosure without the need for a separate statutory exemption.” Baker v. CIA, supra, 188 U.S.App.D.C. at 405, 580 F.2d at 668. We observed, too, that “section 403g creates a very narrow and explicit exception to the requirements of the” Freedom of Information Act. Id 188 US.App.D.C. at 407, 580 F.2d at 670.
. See text supra at note 25.
. American Jewish Congress v. Kreps, supra note 21, 187 U.S.App.D.C. at 418, 574 F.2d at 629.
. See note 16 supra and accompanying text.
. Ray v. Turner, 190 U.S.App.D.C. 290, 323, 587 F.2d 1187, 1220 (D.C.Cir. 1978) (concurring opinion). We spoke there of 50 U.S.C. § 403(d)(3) (1976), which instructs the Director of the Central Intelligence Agency to protect “intelligence sources and methods from unauthorized disclosure.” We observed that, “while the ‘particular types of matters’ listed in Section 403g (e. g., names, official titles, salaries) are fairly specific, Section 403(d)(3)’s language of protecting ‘intelligence sources and methods’ is potentially quite expansive.”
It may be that Congress intended to confer no greater protection to NSA’s “activities” by enacting Pub.L.No.86-36 than it did to CIA by complementary operation of §§ 403g and 403(d)(3). See Baez v. NSA, supra note 9. The Senate Report discussing Pub.L.No.86-36 likened the secrecy afforded NSA to that' allowed other intelligence agencies exempted from the Classification Act, which would include CIA. See S.Rep.No.284, supra note 30, at 2 (“[
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer: |
songer_respond1_3_3 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. UNITED STATES of America, Respondent, American Trucking Association, Inc., Intervenor.
No. 83-1228.
United States Court of Appeals, District of Columbia Circuit,
Argued Feb. 13, 1984.
Decided June 12, 1984.
As Amended June 12, 1984.
Joseph E. Santucci, Jr., Washington, D.C., with whom Robert M. Baptiste and Roland P. Wilder, Jr., Washington, D.C., were on the brief, for petitioner.
Kathleen S. Markman, Atty., Dept. of Transportation, Washington, D.C., for respondent.
Nelson J. Cooney and Robert A. Hirsch, Washington, D.C., entered appearances for intervenor.
Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
The International Brotherhood of Teamsters, petitioner in this case, seeks to have this court overturn new regulations issued after notice and comment rulemaking by the Bureau of Motor Carrier Safety of the Federal Highway Administration (the agency). In order to promote highway safety, the agency or its predecessors have for 40 years regulated the number of consecutive hours that a truck driver is allowed to drive. See 49 C.F.R. § 395 (1982) (codification of current regulations). To enforce these regulations, the agency has traditionally required that drivers keep a log detailing the amount of time they spend on duty. The log had to be kept on a particular form of the kind specified by the agency.
In the rulemaking at issue here, see 4ÍI Fed.Reg. 53383 (Nov. 26, 1982), the agency revamped the logkeeping requirements. The changes were essentially threefold: (1) The new rules permit drivers to use record-keeping forms of their own design, rather than the standardized forms specified by the prior regulations. (2) The new rules permit drivers to omit from their record-keeping forms seven items of information included on the old mandatory forms. (3) The new rules substantially broaden the exemption from the recordkeeping requirement for certain local drivers. After briefly recounting some background information concerning the recordkeeping requirements, we discuss each of these three specific changes in turn.
I. The Recordkeeping Requirement
Since 1938 the agency or its predecessors have required drivers to keep logs, which are of crucial importance in the enforcement of the regulations governing maximum driving and on-duty time. Enforcement agents refer to the logs in roadside inspections; if an examination of the log indicates that the driver is not in compliance with the maximum hours regulations, he may be placed off duty. 47 Fed.Reg. at 53384. In addition, the agency conducts management audits at terminals to determine a carrier’s overall compliance with the maximum hours regulations. Id. The agency has noted that the log is “the principal document that is accepted by the court system as evidence to support enforcement actions for excess hours of service violations.” Id. In the agency’s words, “Currently, [the driver’s log] is the only single universally recognized instrument available to both Government and industry to insure compliance with the hours of service rules.” Id. The agency has underlined its belief in the importance of the recordkeeping requirement by stating that “[germination of [the] recordkeep-ing requirement * * * would be contrary to the very essence of the safety regulatory philosophy of the [agency] and in contradiction to the Act under which it was promulgated.” Id. The importance of a record-keeping requirement is not at issue in this ease.
The form of the log changed only rarely over the years, most notably in 1952 and 1965. See id. Before 1977 drivers had to fill out a separate form for each 24-hour period on duty. However, on November 4, 1977 the agency promulgated regulations permitting drivers to combine the single-day form, MCS-139, with copies of a supplementary form, MCS-139A, to enable them to keep track of periods as long as seven days without filling out a separate form for each day. See 42 Fed.Reg. 58525 (Nov. 10, 1977). Until the current regulations, however, drivers have had a choice between at most two kinds of forms (single-day or multi-day) on which they could record the required information.
The log forms in use before the current rulemaking contained two important types of information. Most important was a “grid” on which a driver would indicate for each hour of the day his duty status: “off duty,” “sleeper berth,” “driving,” “on duty (not driving).” See, e.g., 49 C.F.R. § 395.8 at 489 (1982) (example of completed log under old rules). In addition, the rules required the driver to fill in much other information, such as the date, total mileage, vehicle identification, name of co-driver, home terminal, etc. Under the old rules the driver had to keep a copy of the log in his possession while on duty for 30 days and the driver’s employer had to keep the logs on file for 12 months. 49 C.F.R. §§ 395.8(s), 395.9(u) (1982).
II. Use of Non-Standardized Forms
The agency’s new rules retain the grid used on its earlier forms, as well as much (but not all, see Part III infra) of the information that was formerly required. The agency continues to require that drivers and carriers retain the logs for the same time periods as under the old rules. The major difference is that the drivers need no longer use the standardized forms prescribed by the agency (although those forms continue to be perfectly acceptable). Instead, the driver may use forms of different designs as long as those forms contain at a minimum the grid plus certain other prescribed information.
The point of the change is to reduce the paperwork burden. The logkeeping forms under the old rules had to contain precisely the information specified under those rules, no more and no less. Therefore, many carriers were forced to insist that their drivers fill out one form for internal company purposes (for example, keeping track of drivers’ time for payroll records) and another form to meet the agency’s logkeeping requirements. Because the agency’s logs in form or content were unsuitable for internal company use, the carriers and drivers in effect had to keep two sets of books. This burden has been eliminated under the new rules, which approve the use of company-designed forms in place of the formerly-required logs, as long as the company’s forms contain the grid plus other specified information.
Incredibly, the union in this case addresses its major challenge to this innocuous-seeming change in rules. The union argues that the change was arbitrary and capricious under Section 10 of the Administrative Procedure Act, 5 U.S.C..§ 706(2)(A) (1982), because the agency illicitly traded safety concerns for the economic benefits of the reduction in paperwork.
The agency’s authority to issue safety regulations derived from 49 U.S.C. § 304(a)(1) (1976), which stated:
It shall be the duty of the [agency]—
(1) To regulate common carriers by motor vehicle * * *, and to that end the [agency] may establish reasonable requirements with respect to * * * uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.
The union’s primary argument is that this provision prohibits the agency from taking any action that advances any other goal at the expense of a decrease — however slight — in highway safety. In addition, the union argues that the former logkeeping requirement should be accorded a particularly strong presumption of validity because it had been a (moderately) consistent and (very) longstanding agency interpretation of its regulations. Finally, the union supports its position on the ground that the large majority of comments received by the agency concerning the new regulations expressed support for the old rules.
The agency largely seems to agree with the union: “The safety of the traveling public must not be compromised by weakening a national enforcement capability solely for the purpose of reducing paperwork burden.” 47 Fed.Reg. at 53387. However, according to the agency, reduction of the paperwork burden is a desirable goal if “this course of action would preserve the national hours of service enforcement capability * * Id.
In support of its authority to consider goals other than safety, the agency makes two arguments. First, it argues that Section 304(a) merely authorizes it to promote safety in a sensible and reasonable fashion under the circumstances; such a statute should not (in the absence of some indication to the contrary) be read as a mandate that the agency must remain completely oblivious to all other desirable policy objectives while carrying out the statutory goals. In other words, according to the agency the statute permits it to consider factors other than safety in exercising its delegated authority. Second, the agency points out that other statutes command it to consider other goals. In particular the agency points to the provisions of 44 U.S.C. § 3501 et seq. (Supp. V 1981), which require federal agencies to do everything in their power to minimize the burdens imposed on private parties by the agencies’ need to gather information. The statute explicitly forbids any agency from “conduct[ing] or sponsoring] the collection of information unless * * * (1) the agency has taken actions * * * to * * * (B) reduce to the extent practicable and appropriate the burden on persons who will provide information to the agency.” 44 U.S.C. § 3507(a) (Supp. Y 1981). Sections 3504 through 3509 set up a comprehensive scheme vesting in the Office of Management and Budget (OMB) authority to review agency information collection requests and reject those that impose unnecessary paperwork burdens on private parties. According to the agency, this entire scheme would make no sense if OMB was the only agency that could attempt to reduce paperwork; rather the statutory provisions necessarily imply that other agencies will on their own attempt to reduce the burdens they impose on the regulated entities. Moreover, in this case it seems that the agency was in large part following OMB instructions to reduce the burdens caused by the old logkeeping requirements. See 47 Fed.Reg. at 53385.
We generally agree with the agency. The union fails to call our attention to any special features of the regulatory scheme that would indicate that Section 304(a) should be interpreted so as to exclude the agency from taking nonsafety goals into account in enacting or modifying safety regulations. Moreover, this court has rejected a very similar challenge to action taken by the same agency pursuant to the same statute. In Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216 (D.C.Cir.1983), we held that it was “permissible for the agency to consider costs and benefits in deciding not to amend its regulations.” Id. at 1222. It should be similarly permissible for the agency to consider the economic costs in deciding to amend the same regulations. In the absence of clear congressional direction to the contrary, we will not deprive the agency of the power to fine-tune its regulations to accommodate worthy nonsafety interests.
Given that it was permissible for the agency to consider nonsafety-related factors in evaluating its logkeeping requirements, our review must ask whether in this case the agency acted arbitrarily and capriciously in promulgating the new rules that permit drivers to keep their logs on non-standardized forms.
In its original notice of proposed rulemaking, the agency had suggested that it might abolish the standardized log requirement altogether. See 47 Fed.Reg. 7702 (Feb. 22, 1982). The proposed rules would have replaced the standardized log with a regime in which each driver or carrier would be required to keep a log that included at least certain minimum information; these nonstandardized logs could record the information in any form at all. See id. at 7705. A large majority of the 1,300 comments received by the agency were opposed to this — or any — change, though many of these comments were postcard forms expressing little or no rationale for the opposition. The weightiest concern expressed was the need for uniformity; by permitting each carrier to use an entirely different form the new rules would cause confusion among federal and state enforcement agents who were accustomed to use the old standardized forms. Safety, according to some of the commenters, would necessarily suffer as enforcement agents would be forced to spend more time deciphering the myriad of individualized forms with which they would be faced. A subsidiary concern expressed was that the change could encourage each state to promulgate its own forms for use within its borders, thus causing an increased — rather than a decreased — paperwork burden.
The agency responded to these comments by deciding to retain significant elements of standardization. Thus, although drivers need not use standardized forms under the new rules, whatever form they use must contain the standardized, easily-recognizable grid. As the agency said, “The presence of a standard grid on the carrier’s form will result in universal recognition of any document tendered as an official hours of service record, thus overcoming most objections to the complete elimination of a standardized form requirement.” 47 Fed.Reg. at 53387. The agency’s conclusion is thus that the combination of standardized grid plus nonstandardized recording of other data will not significantly hinder enforcement of the maximum hours regulations. Cf. Int’l Ladies’ Garment Wkrs. Union v. Donovan, 722 F.2d 795, 821-822 (D.C.Cir.1983) (discussing deference to agency’s “predictive judgments about areas that are within the agency’s field of discretion and expertise”). It is of course possible that the agency’s judgment on this point is wrong. But the agency has made a reasonable prediction based on its experience with the old forms, the comments received in the rulemaking proceeding, and the results of a pilot program to test alternative recordkeeping systems. See Al Fed.Reg. at 53387. If we accept (as we must) the agency’s reasonable prediction that the new rules have no substantial impact on enforcement of safety regulations, we must conclude that the agency did not act arbitrarily or capriciously in adopting the new rules on the basis of the economic benefits of decreased paperwork.
The union does raise one further challenge to this aspect of the new rules. The new rules were based in part on data gathered when an outside consultant arranged for small groups of drivers to use alternative recordkeeping methods for a test period. See id. at 53385. The agency admitted that the test program had a natural (and unavoidable) bias toward changing the old rules because “drivers in the program were all employed by fleets whose managements were initially receptive to experimentation with the alternate concepts.” Id. According to the union, given this admitted bias it was irrational for the agency to rely on the data gathered by the test program to support its claim that the new rules would in fact reduce the paperwork burden. Moreover, the union claims that the agency erred in using the consultant’s estimate of savings ($164.1 million) in deciding that the new rules were justified; as the union points out, the final rules adopted did not precisely match the recommendations on which the consultant’s estimate was based.
We agree with the union that the consultant’s estimate cannot be taken to be an absolutely accurate prediction of savings from the new rules; indeed, we would perhaps doubt any such figure accompanied by a claim of absolute accuracy. However, given that permitting nonstandardized forms under the new rules will not have a substantial impact on safety, the agency would be acting rationally in adopting the new rule as long as some significant economic advantage could be achieved. Even if the precision of the $164.1 million savings estimate is doubtful, the estimate does supply substantial evidence that the new rule would offer a significant economic advantage. Therefore, finding that the agency acted reasonably in permitting the use of nonstandardized forms, we reject the union’s attack on this aspect of the new rules.
III. Omitting Seven Items of Information
Although we find the agency not to have acted arbitrarily and capriciously in the central thrust of the rulemaking at issue— permitting the use of nonstandardized forms — we have much greater difficulty with subsidiary changes that the agency made at the same time. The first of these changes governs the types of information that must be included on the recordkeeping forms. The new rules require drivers to use the standardized grid and to include on any form they use the following eight “data elements”: date, total miles driving today, truck or tractor number, name of carrier, driver’s signature/certification, 24-hour period starting time, main office address, and remarks. 47 Fed.Reg. at 53389. However, the new rules no longer require drivers to include seven items of information that were a part of the log forms required by the old rules: total mileage today, name of co-driver, home terminal address, total hours, shipping document numbers or name of shipper and commodity, origin, and destination or turnaround point. Id. at 53387. The union alleges that these items of information are vitally important as checks on the driver’s accuracy in filling out the grid. For instance, in an audit at a carrier’s terminal an enforcement official could compare a particular driver’s grid with the grid of his co-driver to determine if the drivers accurately reported their hours driving and their hours on duty not driving. Similarly, in a highway check an enforcement agent could compute the distance from a driver’s origin to his current location and compare that with the supposed total time to determine whether it was possible for the driver and co-driver to cover that distance in the amount of time indicated.
The agency attempted to justify omission of the seven items from the new record-keeping requirement by stating that “it has been determined that certain information currently required on the log may be unnecessary for enforcement purposes.” Id. The agency noted that “[tjhese deletions are expected to reduce driver preparation by approximately 50 percent without affecting the enforcement capability.” Id. at 53388. This is literally all the agency had to say about its action. Its brief comments are not accompanied by any explanation of how the 50 percent saving was calculated. In addition, unlike the agency’s careful attention to the arguments advanced against its decision to permit drivers to use nonstandardized forms, the agency in deciding to omit the seven items does not discuss, consider, or otherwise admit the existence of the possibility that the items have been useful to enforcement agents over more than 30 years. And the agency’s rulemaking makes no citation or reference whatever to the administrative record, which appears to us to be devoid of any support for the deletion of the seven items.
Our review of the agency’s action in this case is based on the principles we recently outlined under the “arbitrary and capricious” standard of the APA in Int’l Ladies’ Garment Wkrs. Union v. Donovan, supra, 722 F.2d at 814-815. The “keystone” of our inquiry is “to ensure that the [agency] engaged in reasoned decisionmaking.” Id. at 815. The agency itself must supply the evidence of that reasoned decisionmaking in the statement of basis and purpose mandated by the APA. Id. at 814-815; see 5 U.S.C. § 553(c) (1982). Although we will “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), a corollary of this oft-cited statement is that we have neither the expertise nor the authority to substitute our judgment for that of the agency and provide an explanation where the agency’s path is entirely uncharted.
In this case the seven items of information seem to have been required for at least 30 years; this indicates that those items were once thought to serve some law enforcement function. We fully recognize that “[rjegulatory agencies do not establish rules of conduct to last forever,” American Trucking Ass’ns, Inc. v. Atchison, Topeka & Santa Fe R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967), and that agencies must be given ample latitude to “adapt their rules and policies to the demands of changing circumstances,” Permian Basin Area Rate Cases, 390 U.S. 747, 784, 88 S.Ct. 1344, 1369, 20 L.Ed.2d 312 (1968). Accord Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, -, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting above cases). Nonetheless, when an agency seeks to change a settled policy, the record must at least indicate what led it to make the change. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). As the Supreme Court stated in Motor Vehicle Manufacturers, supra, 463 U.S. at -, 103 S.Ct. at 2866, “If Congress established a presumption from which judicial review should start, that presumption * * * is not against safety regulation, but against changes in current policy that are not justified by the rulemaking record.” (Emphasis in original.)
In the light of the above principles, our review focuses on whether the agency explained its change of policy with respect to the seven items of information. Of course, the agency’s unsupported assertion that these items are “unnecessary” is insufficient, for such an' unsupported assertion states a result, not a reason. And aside from the bald assertion that the items are unnecessary, we can find no other indication in the record as to why the agency decided to change its long-established policy. Therefore, in the light of the record evidence and the agency’s own conclusions — and in the absence of any hint as to the basis for the agency’s conclusion that the items were “unnecessary for law enforcement purposes” — we are forced to conclude that the agency acted arbitrarily and capriciously in omitting the seven items from the new recordkeeping requirement.
IV. The 100-Mile/12-Hour Exemption
The final issue in this case concerns the agency’s expansion of an exemption from the recordkeeping requirement. Before the spring of 1980 the logkeeping regulations contained an exemption for drivers who, operated their vehicles beyond a 50-mile radius from their work reporting location and returned to their work reporting location within 15 hours of reporting for duty. See 49 C.F.R. § 395.8(t) (1982). The exemption (subject to some further qualifications not relevant here) only applied if the driver’s employer maintained full time cards or other records showing the number of hours the driver is on duty, the time the driver reports for work, and the time the driver leaves each day. The exemption seems to be based on the assumption that many drivers engaged in primarily local deliveries spend as much or more time out of the truck as they do in the truck. Therefore, the burden imposed by a requirement that they keep track of every minute is rather more severe than the burden imposed by the same requirement on long-distance drivers, while the possibility that the local drivers will actually be behind the wheel for periods longer than permitted under the maximum hours rules will be slim. Therefore, although these drivers continued to be covered by the maximum hours rules, they were exempted from the logkeeping requirements.
In 1980 the agency modified the exemption from the logkeeping requirement by increasing the 50-mile limit to 100 miles while decreasing the 15-hour limit to 12 hours. 45 Fed.Reg. 22042 (April 3, 1980). After the agency made this change, petitions were filed to change the rules once again. A number of carriers contended that companies with heavy seasonal swings — such as home heating oil and farm fertilizer delivery — must keep their drivers on duty extra hours during their busy seasons. Yet many of these companies are engaged in merely local deliveries and have no need to send their drivers beyond the 50-mile limit. Thus, it was argued, these companies were penalized by the modification made in 1980. The suggested remedy was to reinstate the old 50-mile/15-hour limit as an alternative exemption; drivers who met either its requirements or the requirements of the 100-mile/12-hour rule would be exempt from the recordkeeping requirement. 47 Fed.Reg. at 53388. In response to these requests the agency simply expanded the exemption, adding three hours to the time limit; the new rules thus exempt drivers who go no more than 100 miles from their base and are on duty no more than 15 hours a day. The union argues that this expansion was arbitrary and capricious.
The agency justifies expanding the exemption by noting that the problem raised by the 1980 changes — i.e., making the exemption inapplicable to some drivers who previously could have taken advantage of it — “was unintended.” Id. The agency goes on to note that expanding the exemption does not
negate the 10 hour driving time rule. Under this exemption a driver may not drive more than 10 hours following 8 consecutive hours off duty, nor drive after being on duty 15 consecutive hours. While the log exemption would make violating more difficult to detect, we believe that investigative techniques will allow adequate enforcement of the regulation. If experience shows this is not the case, appropriate rulemaking action will be initiated.
Id.
To the extent that the above provides any justification at all for expansion of the exemption, we find that it is inadequate. The statements concerning the availability of “alternative investigative techniques” might be a reasonable basis for modifying the regulation when accompanied by a record that revealed what those techniques were; in this case the agency provides no examples of such techniques or any references or citations to the record that support the existence of such techniques. Cf. Int’l Ladies’ Garment Wkrs. Union v. Donovan, supra, 722 F.2d at 818-826. Moreover, the agency itself notes the crucial importance of the recordkeeping rules it is promulgating. See 47 Fed.Reg. at 53384 (termination of recordkeeping requirement “would be contrary to the very essence of the safety regulatory philosophy of the FHWA and in contradiction to the Act under which it was promulgated”). It is difficult to square the agency’s emphasis on the importance of the recordkeeping requirement with the alleged easy availability of alternative enforcement techniques.
The agency does seem to believe that the expansion is justified because the effect of the 1980 change (bringing some formerly exempt drivers within the ambit of the recordkeeping requirement) was “unintended.” Unfortunately, this result could not have been (and in fact was not) unintended. When the agency made the 1980 changes, it increased the distance and decreased the number of hours for the exemption. As a matter of logic, the two changes would necessarily result in requiring some nonexempt drivers {i.e., those who travel only 50 miles from their home base but stay on duty for 12 to 15 hours at a stretch) to comply with the recordkeeping requirement. As a matter of fact, the agency seems to have been fully cognizant of this result in 1980; as it pointed out then:
Another argument raised by certain commenters against the 12-hour limit was that some drivers may now be operating within the 50-mile radius exemption who, under the 100-mile radius exemption, would now have to prepare a log. However, since FHWA is expanding the area of operation fourfold, a limitation is necessary to ensure that the hours of service are not violated. * * * It should be clearly understood that once a driver exceeds that 12-hour limitation, the 100-mile exemption would no longer be applicable for that day and the hours of service for that day would have to be recorded on a driver’s log.
45 Fed.Reg. at 22043. The 1980 rules merely adjusted the mileage and time limits to bring different drivers (not necessarily more drivers) within the exemption. The agency may not thus rely on the intentions underlying its 1980 changes to now expand the exemption significantly. In short, the agency has failed to provide any justification — either in its current rulemaking or by referring to its 1980 changes — for expanding the exemption. We understand the agency’s inability to provide a justification, because our examination of the record fails to disclose any material that could provide the basis for such a justification.
V. 'Conclusion
Agency action comes before us for review accompanied by a presumption of regularity, and we hesitate to overturn it because an agency has published an inartful statement of basis and purpose in the Federal Register. Particularly with respect to relatively minor changes like those made by the agency in this case, we would not interfere with the agency’s decision where its course “may reasonably be discerned.” We therefore uphold the agency’s modification of the recordkeeping requirement to permit drivers to use their own forms. However, the agency has failed to demonstrate that it engaged in reasoned decision-making or that it had any basis at all for its decisions to omit the seven items of information and expand the exemption from the recordkeeping requirement. For this reason, we hold that the agency acted arbitrarily and capriciously in adopting the new rules to the extent that they omit the seven items of information from the recordkeep-ing requirement and to the extent that they expand the exemption from the recordkeep-ing requirement.
Affirmed in part and vacated in part.
. Section 304(a)(1) grants authority only to regulate common carriers. However, §§ 304(a)(2) and 304(a)(3) grant similar power to regulate contract and private carriers. Section 304(a) is by terms a grant of authority to the Interstate Commerce Commission. The Commission's power to regulate driver qualifications and safety were delegated after 1966 to the Federal Highway Administration as a division of the Department of Transportation. See 49 U.S.C. §§ 1655(e)(6)(C) and (f)(3)(B) (1976). Authority has in turn been delegated to the Bureau of Motor Carrier Safety. See 49 C.F.R. § 301.60 (1982). Since the promulgation of the regulations in question, § 304(a) has been superseded by Pub.L. No. 97-449, 96 Stat. 2438, codified at 49 U.S.C.A. § 3102 (1983). The new provision grants power to the Secretary of Transportation to prescribe regulations for "qualifications and maximum hours of service of employees of, and safety of operation and equipment of" motor carriers.
. We reach this conclusion while construing the specific statute at issue in this case. We express no opinion about whether other safety statutes — which may embody varying congressional directives and may establish varying regulatory systems — should be similarly interpreted. Cf., e.g., American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (interpreting 29 U.S.C. § 655(b)(5) (1982)).
. The closest approximation that we can find to an explanation of the agency’s rationale for omitting the seven items of information occurs in the discussion of the issue in the agency’s brief on appeal. See brief for respondent at 25-27. It is well settled that our review cannot be based on post hoc rationalizations by counsel. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, -, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Burlington Truck Lines v. United States, 371 U.S. 156, 168-169, 83 S.Ct. 239, 245-246, 9 L.Ed.2d 207 (1962). It is noteworthy that the discussion in the brief does not contain a single citation to the record.
. The expansion of the exemption under the new rules may be more significant than the apparent 25% expansion from 12 to 15 hours would indicate. The maximum hours regulations — stripped of qualifications irrelevant for present purposes — limit a driver to 10 hours behind the wheel each day. 49 C.F.R. § 395.3 (1982). Before the instant rulemaking drivers whose tour of duty lasted less than 12 hours were eligible for the exemption. Thus only drivers who spent less than two hours out'of 12 (one-sixth) of their on-duty time not driving would break the maximum hours rules. The rules must therefore have been predicated on dle assumption that it was unlikely that local drivers would spend less than one-sixth of their on-duty time not driving. Under the new rules, however, a local driver whose tour of duty lasts 15 hours may still qualify for the exemption; the comparable assumption must therefore be that local drivers will spend at least five hours out of fifteen, or one-third of their on-duty time, not driving. Thus, at least when seen from this perspective, the new rules represent a doubling (from one-sixth to one-third) of the amount of time that the agency is willing to assume a local driver is not driving during a given tour of duty.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant?
A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases
B. United States - in corporate capacity - civil cases
C. special wartime agency
D. Other unlisted federal agency (includes the President of the US)
E. Unclear or nature not ascertainable
Answer: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
SAUNDERS v. WILKINS.
No. 5385.
Circuit Court of Appeals, Fourth Circuit
Dec. 6, 1945.
Arthur Dunn, of New York City, and Moss A. Plunkett, of Roanoke, Va., for appellant.
V. P. Randolph, Jr., Asst. Atty. Gen. (Abram P. Staples, Atty. Gen., of Virginia, on the brief), for appellee.
Before SOPER and DOB1E, Circuit Judges, and HARRY E. WATKINS, District Judge.
SOPER, Circuit Judge.
This action was brought by Henry L. Saunders, a citizen of Virginia, qualified under Article 1, Section 2, Clause 2 of the Constitution of the United States to be a candidate for the office of Representative in the Congress of the United States from the State, against Ralph E. Wilkins, Secretary of the Commonwealth of Virginia. The complaint alleged that on October 18, 1943 Saunders notified the Secretary of his intention to be a candidate to he elected to that office by the electors of the State at large at the general election to be held on November 7, 1944; that he filed with his notice a petition signed by two hundred and fifty qualified voters of the State at large, in accordance with § 154 of the Code of Virginia of 1942, and thereupon it became the duty of the Secretary of State to notify the Secretary of the Electoral Board of each county and city of the State of such candidacy; and that the defendant failed to perform this duty, but instead, on August 3, 1944, returned the declaration of candidacy and refused to certify the name of the plaintiff as such candidate. It appears from the correspondence filed with the complaint that the Secretary’s refusal to certify the candidacy was based on an opinion of the Attorney General of the State which held that under the laws of Virginia no such office as member of the House of Representatives from the State at large existed, and no election was being held for that position.
The complaint charged that by the failure and refusal of the Secretary to certify the name of the plaintiff as a candidate for the office plaintiff was denied his political rights under the Constitution of the United States and was entitled to recover from the Secretary damages in the sum of $20,000 under R.S. § 1979, 8 U.S.C.A. § 43.
The complaint was met by a motion to dismiss on the ground that it failed to state a cause of action since questions relating to the apportionment of representatives among the several States are political in their nature and reside exclusively within the determination of Congress and hence the plaintiff was not deprived of any right by the action of the Secretary. The District Judge accepted this view and dismissed the bill, holding that the office of Representative at Large from Virginia does not exist because Virginia has divided its. territory into nine districts in conformity with the number of representatives allotted by Congress, and that it is only when a State fails to take such action that the office of Representative at Large comes into being.
The theory of the appellant’s case may be thus summarized: Virginia has abridged the right of certain inhabitants of the State, twenty-one years of age and citizens of the United States, to vote for the choice of Presidential electors and for Representatives in Congress, and hence under the terms of § 2 of the Fourteenth Amendment the basis of representation of the State should be reduced in the proportion which the number of such citizens bears to the whole number of citizens twenty-one years of age in the State. The abridgment of the right of certain citizens of Virginia to vote, to which the plaintiff refers, results from §§ 18, 20, 21, 22, 23 and 24 of the State Constitution and § 22 of the State Tax Code whereby certain requirements and qualifications for registration and voting are set out, including the payment of a poll tax, and the result, according to the plaintiff, is that sixty per cent of the inhabitants of the State are deprived of the right to vote. By reason of this action of the State it became the duty of Congress to make a corresponding reduction in the number of representatives allotted to Virginia, and if this had been done, Virginia would have been entitled to not more than four representatives.
In disregard of this duty, Congress passed § 2(a) of the Act of November 15, 1941, Chap. 470, 55 Stat. 762, 2 U.S.C.A. § 2b, whereby it was provided that each State shall be entitled in the 78th and in each Congress thereafter until the taking effect of a reapportionment to the number of Representatives shown in the statement transmitted to Congress by the President on January 8, 1941, based upon the method known as the method of equal proportions, no State to receive less than one member. Under this apportionment Virginia was allotted nine representatives; and they have been since elected by the voters of the nine districts into which the State was divided by the Act of the Virginia, legislature of 1934. Virginia Code of 1942, §§ 70, 71 and 72. Both of these Acts, the Act of Congress and the Act of the State Legislature, are invalid and of no effect since they are in conflict with § 2 of the Fourteenth Amendment, and consequently Representatives to Congress from Virginia must be chosen from the State at large, just as if ■no redistricting of the State had been made by the Legislature. The situation is likened to that which was considered by the Supreme Court of Appeals of Virginia in Brown v. Saunders, 159 Va. 28, 166 S. E. 105, wherein the Virginia Apportionment Act of 1932 was declared to be in conflict with the State Constitution in that it failed to divide the State into districts composed of as nearly an equal number of inhabitants as possible, and the court held that it was necessary for the electors in the State at large to select all nine members to represent the State in the national legislature. See also, Carroll v. Becker, 285 U. S. 380, 52 S.Ct. 402, 76 L.Ed. 807; Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L. Ed. 795.
Section 22(c) (5) amended by § 1 of the Act of Congress of November 15, 1941, Ch. 470, 55 Stat. 761, 762, 2 U.S.C.A. § 2a(c) (5), provides for such a contingency by directing that if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large. Since the number of districts into which the State of Virginia is divided under the existing State law exceeds the number of Representatives in Congress to which the State is entitled, it follows that they must be elected from the State at large. See, Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795. Moreover, under Article 1, Section 2, clause 3 of the Federal Constitution each State shall have at least one Representative in Congress.
The conclusion derived by the appellant from the aforegoing argument is that all Representatives in Congress from Virginia must be elected by the voters of the State at large and that the Secretary of State should have certified his candidacy. It is manifest that the underlying purpose of this argument and of the instant suit is to bring about the abolition of the Virginia poll tax law. A direct attack upon its constitutionality is not made, doubtless because the decisions generally hold that a State statute which imposes a reasonable poll tax as a condition of the right to vote does not abridge the privileges or immunities of citizens of the United States which are protected by the Fourteenth Amendment. The privilege of voting is derived from the State and not from the national government. The qualification of voters in an election for members of Congress is set out in Article 1, Section 2, Clause 1 of the Federal Constitution which provides that the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. The Supreme Court in Breedlove v. Suttles, 302 U.S. 277, 283, 58 S.Ct. 205, 82 L.Ed. 252, held that a poll tax prescribed by the Constitution and statutes of the State of Georgia did not offend the Federal Constitution. The court said (302 U.S. 277 at page 283, 58 S.Ct. at page 208, 82 L.Ed. 252):
“To malee payment of poll taxes a prerequisite of voting is not to deny any privilege or immunity protected by the Fourteenth Amendment. Privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate. Minor v. Happersett, 21 Wall. 162, 170 et seq., 22 L.Ed. 627; Ex parte Yarbrough, 110 U. S. 651, 664, 665, 4 S.Ct. 152, 28 L.Ed. 274; McPherson v. Blacker, 146 U.S. 1, 37, 38, 13 S.Ct. 3, 36 L.Ed. 869; Guinn v. United States, 238 U.S. 347, 362, 35 S.Ct. 926, 59 L.Ed. 1340, L.R.A.1916A, 1124. The privileges and immunities protected are only those that arise from the Constitution and laws of the United States and not those that spring from other sources. Hamilton v. Regents, 293 U.S. 245, 261, 55 S.Ct. 197, 203, 79 L.Ed. 343.”
See also, Pirtle v. Brown, 6 Cir., 118 F. 2d 218, 139 A.L.R. 557, certiorari denied 314 U.S. 621, 62 S.Ct. 64, 86 L.Ed. 499; Annotation, 139 A.L.R. 561; Campbell v. Goode, 172 Va. 463, 2 S.E.2d 456; Stone v. Smith, 159 Mass. 413, 34 N.E. 521; McPherson v. Blacker, 146 U.S. 1, 39, 13 S. Ct. 3, 36 L.Ed. 869.
It is the contention of the appellant, however, that even if the Virginia poll tax law does not offend the first section of the Fourteenth Amendment, nevertheless the statute falls within the terms of the second section of the Amendment by abridging the right of citizens of the United States to vote, and therefore the Apportionment Act of Congress of 1941 and the Redistricting Act of the State Legislature, which failed to take into account the effect of the poll tax act, are invalid with the consequences outlined above. We think that this contention presents a question political in its nature which must be determined by the legislative branch of the government and is not justiciable. It is well known that the elective franchise has been limited or denied to citizens in -various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, and it is noteworthy that there are no instances in which the courts have attempted to revise the apportionment of Representatives by Congress. Willoughby, Constitution, 2d Ed. pp. 626, 627.
It was held in' Luther v. Borden, 7 Howard 1, 42, 12 L.Ed. 581, that it rests with Congress to decide whether a State government is republican in form, as contemplated by Article 4, Section 4 of the Federal Constitution; and in Coleman v. Miller, 307 U.S. 433, 456, 59 S.Ct. 972, 83 L.Ed. 1385, 122 A.L.R. 695, it was decided that the efficacy of a ratification of a proposed amendment to the Federal Constitution by a state legislature which had previously rejected it is a question for the political departments. In the last mentioned case it was said (pages 454-455 of 307 U.S. .433) that in determining whether a question is political and not justiciable, the dominant considerations are the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for judicial determination. It is our opinion that the question involved in the pending case, viewed from either aspect, will be seen to be political. It is quite clear that we lack the means of deciding whether or not Virginia is entitled to nine Representatives in Congress upon the information before us. It is true that the complaint contains the allegation that the effect of the Virginia poll tax is to disenfranchise sixty per cent of the citizens within the State. But we have no means of knowing the effect upon the suffrage of the restrictions imposed by the statutes of other states in the form of poll taxes or other qualifications for voting. We could not say, even if the question lay within our power, whether Virginia is entitled to nine out of the total number of four hundred and thirty-five Representatives provided by Congress without ascertaining the number to which other states are entitled when the provisions of the second section of the Fourteenth Amendment are taken into consideration.
It is equally true that the court is without power to reduce the number of Representatives fixed by Act of Congress or to decide in case the number of Representatives from Virginia should be reduced, what disposition should be made of the vacancies thus caused, or to what states they should be allotted in order to maintain the total ordained by Congress. It is clear that there can be no finality on any of these questions until Congress exercises the authority and performs the duty entrusted to it by the Constitution. It is true that the pending case takes the form of a suit for damages against the Secretary of State for failure to certify the candidacy of the appellant, but in order to fix liability upon the Secretary, it would be necessary for this court to hold that notwithstanding the Act of Congress, the number of Representatives from Virginia and therefore of other states in the Union as set out in the Act' of Congress is erroneous and should be changed. This determination we have no power to make.
The case cannot be distinguished in principle from that before the Supreme Court of Nebraska in State v. Boyd, 36 Neb. 181, 54 N.W. 252, 19 L.R.A. 227, where an action was brought to compel the Governor of the State to call an election for three additional members of Congress to fill vacancies caused by the failure of Congress to allot to the State the number of Representatives to which it was entitled under the census of 1890. In dismissing the action the court said: (36 Neb. at pages 188, 189, 54 N.W. at page 254, 19 L.R.A. 227)
“ * * * There is much force in the objection that the states entitled to increased representation are thereby deprived of the same for two years. The question, however, is political, rather than judicial, and it is difficult to perceive in what way the courts can remedy the defect. With the present improved modes of taking the census and classifying the returns, the population of each state can be ascertained within a few months after the actual enumeration, so that the apportionment can be made in December or January following the taking of the census. It would seem but justice that this should take effect in the succeeding congress, and we may confidently trust to that spirit of fairness so characteristic of the American people, to correct the wrong. The courts, however, have no authority to declare that a greater number of representatives shall be elected and admitted to congress than the statute specifies; and the writ must be denied, and the action dismissed.”
See also, Daly v. Madison County, 378 Ill. 357, 365-366, 38 N.E.2d 160.
The judgment of the District Court will be affirmed.
These sections provide in substance as follows:
Section 18 provides that every citizen of the United States, twenty-one years of age, resident of the State one year, of the County six months and of the Precinct in which he offers to vote thirty days next preceding the election, and has paid his State poll taxes, shall be entitled to vote for members of the General Assembly.
Section 20 provides that every citizen of the United States having the qualifications of age and residence required in § 18 shall be entitled to register provided that he has personally paid all State poll taxes assessed against him for the three years next preceding.
Section 21 provides that a person registered under § 20 shall have the right to vote for all officers elected by the people, provided that he shaE as a prerequisite to the right to vote personaEy pay six months prior to the election all State poE taxes assessed against him under the Constitution during the three years next preceding, unless exempted by § 22 from the payment of poll tax.
Section 22 exempts persons who served in the army or navy of the United States or the Confederate States in the war between the States.
Sections 28 and 24 exclude from registering and voting insane persons, paupers, persons convicted of certain crime, members of the armed forces temporarily in the State, &e.
Section 22 of the State Tax Code, Code Ya.1942 Appendix, p. 2641 levies a capitation tax of $1.50 per annum on every resident of the State not less than twenty-one years of age, except those pensioned by the State for müitary services, $1.00 to be applied to the aid of the public free schools and the residue to be paid by the State into the treasury of the county or city in which it was coEected, to be used as the authorities thereof shall determine.
The statement of the President is contained in a message to Congress which was referred to the Committee on the Census and printed as Document No. 45, H.R., 77th Cong.,' First Session, 16th Decennial Census of Population.
The total number of representatives is fixed at 435 by the Act of February 14, 1912, 87 Stat. 1728, 2 U.S.C.A. § 2.
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_numappel | 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 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.
TUCKER et al. v. TEXAS AMERICAN SYNDICATE et al.
No. 12355.
United States Court of Appeals Fifth Circuit.
Dec. 7, 1948.
Carlisle Cravens, of Fort Worth, Tex., H. C. Upton, of San Angelo, Tex., and Dexter Hamilton, of Dallas, Tex., for appellants.
William E. Allen and J. B. Wade, both of Fort Worth, Tex., for appellee.
Before HOLMES, WALLER, and LEE, Circuit Judges.
HOLMES, Circuit Judge.
This is a voluntary reorganization proceeding under Chapter 10 of the Bankruptcy Act, as amended, 11 U.S.C.A. §§ 501-676. The petition alleges that the debtor is a business trust or joint stock association, duly organized under the laws of Texas, and that it is unable to pay its debts as they mature. 11 U.S.C.A. §§ 526, 528, 530, 531, 541, 543, 544, 545. The nature of the debt- or’s business is alleged to be owning land, farming, operating ranches, raising live stock, acquiring and developing land for oil and gas, and engaging generally in the oil business. Numerous motions and other pleadings were filed on behalf of creditors and claimants, objecting to the jurisdiction of the court and averring that the petition was not filed in good faith. After hearing evidence and argument, the court overruled the motions to dismiss, approved the petition as properly filed, and directed that the debtor be continued permanently in possession of the property.
There are two principal issues presented on this appeal: first, whether the debtor’s petition states the requisite jurisdictional facts; second, whether-the petition was filed in good faith. We shall deal with these issues in the order stated.
Although it is alleged that the debt- or is unable to pay its debts as they mature, it appears from the face of the petition that the largest claim against it is one for $79,-300; that this item is in suit; the debtor has plead failure of consideration; and has filed a cross-action for the sum of $1,538,-999.90. The only other debt specifically mentioned in the petition is alleged to be due to the State of Texas in the sum of $11,500. It elsewhere appears in the petition that the debtor owns lands valued at between three hundred and six hundred thousand dollars, and that claims have been asserted against it in the total sum of $124,437.20, which includes the item of $79,300 previously mentioned. The petition does not state the assets, liabilities, capital stock, and financial condition of the corporation as is required by the Bankruptcy Act, 1TU.S.C. A. § 530(4). There is no allegation as to the amount of cash or liquid assets available for the payment of debts, nor of specific facts showing the need for relief under Chapter 10, 11 U.S.C.A, § 530(7); but the pleadings are subject to amendment even on a question of jurisdiction; and, therefore, without deciding the first point, we pass to the second, as was done in Ex Parte Bakelite Corporation, 279 U.S. 438-448, 49 S.Ct. 411, 73 L.Ed. 789.
The record contains much oral and documentary evidence. At the outset1 of the hearing the debtor admitted that the trust estate was not insolvent. The court below found as a fact that the syndicate had no money to pay its debts, but it made no finding as to the vast resources of this organization, which would have enabled it to raise sufficient money to pay every debt owing by it. The evidence shows clearly that, although the market value of the real estate owned by the debtor was sufficient for the purpose, it made no effort to borrow money to meet its maturing obligations; on the contrary, it got rid of all of its cash, amounting to nearly $100,000, by paying debts that were not due and making improvements on real estate that were not absolutely necessary.
On November 30, 1947, the day after the petition was filed, according to the books of the debtor itself, it owned total assets of $421,167.38, and owed the aggregate sum of $41,173.87, disclosing a net worth on that date of $379,993.51. Within less than a year before filing the petition for reorganization, the debtor paid the State of Texas the sum of $27,936.22 on an indebtedness not then due, and during the same time spent for improvements on the Wade Ranch an amount exceeding $34,582.95.
When the petition was filed, the only debts then due, which were liquidated as to amount and not contested as to liability, were about $2200 due for additional improvements on the Wade Ranch, and $1000 due a bank in Fort Worth. These amounts were inconsequential in comparison with the admitted assets and income of the debt- or. No plausible reason is advanced for the debtor’s getting rid of its cash assets in this manner other than that it was done to enable the debtor in this proceeding to urge its inability to pay its debts as they matured. We think the finding that the petition was filed in good faith was clearly erroneous, and should be set aside.
Prior to approving the petition as properly filed, the court ordered a stay of proceedings in five suits pending in various state courts of Texas; four of them were brought by the debtor, Texas American Syndicate; the. only suit against the debt- or was one wherein it was sought to enforce liens upon lands of the debtor located in Texas; and the decision thereof obviously will be governed by the laws of Texas; the other four cases are actions in trespass to try title to lands also situated in Texas. They were instituted by the debtor, and their decision likewise will be governed by the laws of Texas. If not a distinct disservice, at least it would be a work of supererogation for the bankruptcy court to take all these land suits away from the state courts and try them in the federal court.
The Texas courts are the repositories of the law of that state. It is to their decisions that the federal courts must look to ascertain the Texas law in local matters. This is preeminently true with reference to the law of real estate situated in Texas. For this reason, as well as because the local courts are more convenient to the litigants, and may be less expensive, we think the order staying proceedings in these five cases was improvidently granted and should be dissolved.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_usc1 | 38 | 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.
NEGRON v. UNITED STATES.
Circuit Court of Appeals, First Circuit.
February 9, 1929.
No. 2253.
George L. O’Hara, of Boston, Mass. (Pedro Amado Rivera and Aureliano Rivas, both of San Juan, Porto Rico, and Maurice J. Power, of Boston, Mass., on the brief), for plaintiff in error.
John V. Spaulding, Asst. U. S. Atty., of Boston, Mass. (John L. Gay, U. S. Atty., and Jesus A. Gonzalez, Asst. U. S. Atty., both of San Juan, Porto Rico, on the brief), for the United States.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. '
JOHNSON, Circuit Judge.
The plaintiff in error was convicted in the District Court of the United States for the District of Porto Rico for the violation of the Act of Congress approved. June 7, 1924, e. 320, § 500, 43 Stat. 628, as amended by the Act of March 4,1925, e. 553, § 17, 43 Stat. 1311 (38 USCA § 551).
This act is known as the World War Veterans’ Act, and section 500 of the same, so far as material, is as follows:
“Except in the event of legal proceedings under section 19 of title I of this act, no claim agent or attorney except the recognized representatives of the American Red Cross, the American Legion, the Disabled American Veterans, and Veterans of Foreign Wars, and such other organizations as shall be approved by the director shall be recognized in the presentation or adjudication of claims under titles II, III, and IV of this act, and payment to any attorney or agent for such assistance as may be required in the preparation and execution of the necessary papers in any application to the bureau shall not exceed $10 in any one ease. * * * Any person who shall, directly or indirectly, solicit, contract for, charge, or receive, or who shall attempt to solicit, contract for, charge, or receive any fee or compensation, except as herein provided, shall be guilty of a misdemeanor, and for each and every offense shall be punishable by a fine of not more than $500 or by imprisonment at hard labor for not more than two years, or by both such, fino and imprisonment.”
One Juan R. Perez, a veteran of the World War, had made application to the Veterans’ Bureau at Washington, D. C., for compensation, with the assistance of tho American Red Cross in San Juan, Porto Rico, but after a long delay he was led to apply to Negron for bis assistance. , The manager of the Veterans’ Bureau in San Juan, Porto Rico, received a communication from Washington in 1922 to examine tho applicant.
Porez testified that Negron assisted him in obtaining compensation, which he had been trying to obtain for seven years. Negron secured an affidavit from one Dr. Crespo, which was forwarded to Washington to be used in connection with the claim of Perez. Ultimately Perez received $3,755.70, from which Negron took $1,877.85, being 50 per cent, of the compensation received.
Perez enlisted in tho army of the United States in 1908 and was discharged on March 12, 1919. Ho afterwards was in several hospitals, and both of Ms legs were amputated to arrest tho progress of the disease with which he was afflicted.
The errors assigned are that the court refused to order a verdict for the defendant, failed to instruct the jury as requested by the defendant, and eired in tho admission of tesiimony.
It clearly appears from the testimony of Perez, and from a letter introduced in evidence, written to Perez by Negron December 17, 1927, that Negron assisted Perez in preparing’ his claim for compensation. In this letter the writer asked him to send his discharge and “give me some data that I need in order to start your claim.” He then gives specific directions in regard to the evidence which will be needed, and also directs Mm to get a medical certificate from Dr. Crespo, and to send all letters which he may have received from the Veterans’ Burean. It is clear that there was evidence to he submitted to tho jury, and that the request for a directed verdict was correctly denied.
Tho instructions which the court failed to give related to the papers which had been introduced in evidence. The court was asked to instruct the jury that in order to convict the defendant it was incumbent upon the government to prove beyond a reasonable doubt that those papers were prepar ed and executed by his direction. In regard to the services rendered to Perez by Negron the court correctly charged the jury as follows:
“If you believe from tho evidence beyond a reasonable doubt that the defendant was the agent of Juan R. Perez in the matter of tho claim of the said Juan R. Perez for compensation under the World War Veterans’ Act of 1924, and that as such agent he furnished such assistance as was required in the preparation and execution of the necessary papers in regard thereto, and that ho received a greater sum than $10 therefor, then you must convict the defendant.
“The law reads: 'Assistance * * * in the preparation and execution of the necessary papers.’ That does not mean that tho defendant prepared all of the papers, or that he necessarily prepared any of the papers. If he gave his assistance in such preparation and execution,, that is all that is required.”
This instruction fairly covered tho request that was made.
It is also assigned as error that tho court erred in not instructing the jury that it was incumbent upon the government “to prove beyond a reasonable doubt that the papers introduced by the government in evidence were necessary papers in order to convict the defendant.” It is not clear from the record what papers are referred to in the requested instruction, but they evidently were the application of the soldier, his discharge, and affidavits showing his disability, all of which were forwarded to Washington. That these were “necessary papers” is shown by the fact that compensation was awarded, and that in the letter of Negron to Perez above referred to they were deemed to be necessary,
It is also assigned as error that the testimony of an attorney — Picornell—was admitted. His testimony related only to tho identification of certain incriminating letters which were left by Negron at the home of. Poj'oz for Ms signature, and wMch in substance stated that Negron had dealt honorably and _ faithfully with him, that he had made a mistake in asking’ for an investigation of his case, and that Negron had never received any compensation from him greater than that allowed by law and had done nothing in violation of the World War Veterans’ Act. These letters were introduced in evidence for the purpose of showing acknowledgment of guilt by Negron and an attempt on his part to evade its consequences. The court ruled that the evidence of Picornell did not violate the duty owed by Picornell as an attorney to Perez, and it is evident that its only purpose was to identify the letters which were brought by Perez to Mm. There was no error in tho admission of these letters ia evidence.
We find no merit in any of the errors assigned. The record clearly discloses that Negron received half of the amount paid to Perez, which was a violation of the World War Veterans’ Act; that when the cheek for the full amount of the compensation was received hy Perez he went to Negron with it, as the latter had instructed him to notify him upon its receipt; that at this time Negron had his discharge and other papers that came from Washington; that when he received the check he went to San Juan to cash it in order to pay Negron for his work — "the letters he wrote to Washington, and everything, I had to pay him for his services. I don’t know how many letters he wrote to Washington. I know that he wrote to Washington because I sent to him a doctor’s certificate of Dr. Crespo.” He also testified that he had received a letter from Negron stating that, instructions had been received from Washington to send him to the hospital.
The judgment of the District Court is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_dueproc | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of the requirements of due process by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
NORTH WHITTIER HEIGHTS CITRUS ASS’N v. NATIONAL LABOR RELATIONS BOARD.
No. 8819.
Circuit Court of Appeals, Ninth Circuit.
Jan. 12, 1940.
Rehearing Denied Feb. 7, 1940.
Ivan G. McDaniel, of Los Angeles, Cal., for petitioner.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Ruth Weyand, Mortimer B. Wolf, Samuel Edes, and Owsley Vose, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
STEPHENS, Circuit Judge.
Charges by the Citrus Packing House Workers Union Local No. 21,091, were laid before the National Labor Relations Board, that North Whittier Heights Citrus Association was guilty of unfair practices by interfering with, restraining and coercing twenty-eight employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act [49 Stat. 449, 29 U.S.C.A. § 151 et seq.], sometimes herein referred to as the “Act”, and sometimes herein referred to as the “Wagner Act”, by discouraging membership in a union and by discriminating in regard to hire and tenure of employment of such employees in closing its plant August 14, 1937 and not recalling these employees to work when the plant reopened August 24, 1937. Thereafter the Board issued its complaint in regard thereto, the Association filed its answer, and a hearing was had. At the opening of the hearing the Association filed its motion to dismiss the proceedings upon the ground that its employees were agricultural laborers and therefore exempt from the Board’s jurisdiction, and that its operations do not directly burden or affect interstate or foreign commerce. The hearing proceeded and the Board made and filed findings and conclusions and its order to cease and desist certain unfair labor practices and to reinstate twenty-seven of such employees, and ordered certain additional affirmative action. The complaint was dismissed in so far as it contained allegations of unfair labor practices with respect to O. W. Rudick, one of the twenty-eight employees mentioned in the complaint. The Association petitioned this court to review the proceedings and to set aside the order, to which the Board filed its answer and affirmatively requested enforcement of the order. Hereinafter the Association will be designated as the “Petitioner”, and the National Labor Relations Board as the “Board”.
There is competent and substantial evi7 dence to support the following factual account of the proceeding. Petitioner is a corporate body organized and existing under the California Agricultural Products Marketing Act [Act No. 146, General Laws of California] with a membership of about 200 citrus fruit growers. It is engaged in the business of receiving, handling, washing, grading, assembling, packing and shipping the citrus fruit of its members and others for marketing under a marketing contract with the Semi-Tropic Fruit Exchange, which has a marketing agreement with the California Fruit Growers Exchange. Through these agencies practically all of the fruit handled by Petitioner moves directly from its plant to vehicles for transportation under the direction of the California Fruit Growers Exchange into interstate and foreign commerce.
Employees of Petitioner are generally persons residing at no great distance from the packing house and most of them have worked in the packing house for many years. The work is seasonal and dependent upon fruit condition in orchard, and consistent with such influences it has been the practice of Petitioner to give notice of suspension of operations and notice when' about to reopen.
During the latter part of July, 1937, some agitation for wage increase was going around among the employees and there was some wage increase granted, but there was no general increase. The union heretofore mentioned was formed during this same month and the activity of employees toward that end was met with disapproval by the plant manager. Early in the succeeding month the manager issued a written notice to the employees that they need not join a union under coercion and that they were not under the terms of the Wagner Act. One of the employees was warned in his home by his superintendent to quit talking union in the packing house and quit going to union meetings. On the night of August 10th, 1937, a stranger was excluded from a union meeting and he immediately joined the manager who had been waiting outside in his automobile. On July 30th the manager shook his finger in employee Joseph Matlock’s face and warned him that his wife’s activity in securing membership in the union must be stopped or that he would “clean house”. There were other acts attributable to the packing house management which tend to the Conclusion that it was attempting to prevent the formation of the union.
On August 13th, 1937, Petitioner through its manager issued the following signed notice:
“To All Employees:
“Due to conditions beyond our control, orange packing will be discontinued indefinitely at 12:00 o’clock noon, Sunday, August 14, 1937. The lemon house will also shut down for an indefinite period beginning at the same time. Therefore it will be necessary that all employees in all departments of both the orange and lemon division be laid off until work is resumed, and are notified to return.
“Upon your request, your pay in full may be obtained at the office Monday afternoon.”
The plant was closed at noon of the next day, at which time there were 118 employees working in the plant. Work was resumed August 23rd, but not all of the employees were notified to return. No grader had joined the union and no grader among the laid off employees failed to be recalled to work. Twenty packers had joined the union, and while all of the nonunion packers had been recalled but three of the union employees were recalled to work. There were twenty lemon packers, of whom six had joined the union. No union employee in the lemon division of the packing house was recalled, while thirteen of the fourteen non-union employees were recalled. No other union employees were recalled to work in the packing house. Thus twenty-seven of the thirty-two union employees were not recalled, while only eight of the eighty-two non-union employees were not recalled, and some of the eight were later recalled to work. At the reopening of the plant seventeen, and shortly thereafter seventeen more nonunion new employees were put to work. No additional union men were put to work.
Mrs. Shermer, head of the orange packing department, testified that there were good workers in the union who were not recalled. Additional detailed facts may be related under the different points raised in the case.
The Board’s order was that the petitioner
“1. Cease and desist:
“(a) From interfering with, restraining, or coercing its employees in the exercise ■of the rights to self-organization,' to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con•certed activities for the purpose of collective bargaining or other mutual aid and protection, guaranteed in Section 7 of the Act.
“(b) From spying, maintaining surveillance, or employing any other manner of espionage over the meetings or meeting places and activities of the Citrus Packing House Workers Union, Local No. 21091, ■or any other labor organization of its employees.
“(c) From discouraging membership in Citrus Packing House Workers Union, Local No. 21091, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment, or by threats of such discrimination.”
Petitioner was also ordered to take affirmative action by reinstatement without prejudice to former seniority rights and privileges of all of the employees named in the complaint except O. W. Rudick, and to make them whole as to loss of wages; to post notices as to the cease and- desist ■order; and to notify the Regional Director as to steps taken in compliance with the order.
Petitioner presents its plea for relief under six designated points, and we shall consider them in the order of their presentation in its brief.
Are the Packing House Workers Agricultural Laborers?
The production and marketing of citrus fruits in California have undergone changes as have various other activities in their transition from “one man” affairs to “big business”. The public regard for the product itself has changed from that of a pretty and tasty tidbit to that of a standard widely used fruit food. Large acreages, in fact large sections of the State of California, are devoted almost wholly to this horticultural product. In the early day everything connected with the product was done “on the farm”. Experience produced better fruit, better fruit created greater demand, greater demand impelled system in handling. Possibly the most marked change in this transition was that of systematic marketing and uniformity in preparation for marketing, and these changes brought about the desirability of separating certain processes from the service of the* “farmer” to specialists. The farmer also learned through bitter experience that-individual grove product sale to middlemen or through consignment to independent fruit marketers resulted too often in ruin. The vast and comprehensive system which has been hereinbefore briefly alluded to was built up to adequately handle this large industry and to eliminate the practices which were so costly to the growers. Thus the growers themselves have separated from the farm, the work-now done in the packing house and with which we are here concerned, and have assigned it to an incorporated organization brought into being by the growers for such particular purpose. -
We shall proceed to consider whether or not those employed in petitioner’s packing house are “agricultural laborers” and as such exempt under the Act from the Board’s jurisdiction.
The pursuit of definitions of “agricultural laborers” through the cases leads to confusion because generally the case definitions have grown out of special statutory phraseology or out of judicial effort to conform to legislative intent. While it is quite impossible to phrase -an all inclusive yet accurate definition of the term “agricultural laborer” as it is used in the Wagner Act the intent of Congress is not at all obscure.
The very first statement of the Act is: “Section 1 [§ 151]. The denial by employers of the right of employees to organize and the refusal by employers to accept the. procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce [interstate and foreign] ^ »
In Section 2, subdivision (3), of the Act it is provided that unless the Act explicitly states otherwise, the term “employee” shall include “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, * * * but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse.”
The purpose of the Act is clear and we find the Act specifically excepting three kinds of employees from its provisions. It would seem profitable to consider whether or not there is a “common denominator” in these three exemptions. We think there is. Why is “any individual employed by his parent or spouse” exempted? Because (not excluding other reasons) in this classification there never would be a great number suffering under the difficulty of negotiating with the actual employer and there would be no need for collective bargaining and conditions leading to strikes would not obtain. The same holds good as to “domestic service”, and the same holds good as to “agricultural laborer” if the term be not enlarged beyond the usual idea that the term suggests. Enlarge the meaning of any of these terms beyond their common usage and confusion results. 'When every detail of farming from plowing to delivering the produce to the consumer was done by the farmer and his “hired man”, this common denominator was present. But when in the transition of citrus fruit growing from this independent action to the great industry of the present in which the fruit is passed from the individual grower through contract to a corporation for treatment in a packing house owned and run by such corporation, to be delivered by this corporation to an allied corporation for transportation and market, we think the common denominator has ceased to exist. The fact that these corporations are allied through their membership of growers does not, in our opinion, affect the situation under consideration. See Pinnacle Packing Company et al. v. State Unemployment Commission, decided February 19, 1937, by the Circuit Court of Jackson County, Oregon.
Petitioner in his brief points to these important changes and concludes, “It therefore becomes important to devise some test or touchstone to determine whether certain practices are agricultural or industrial”. It can hardly be contended that agriculture and industry are opposites generically speaking. Agriculture is a great industry. So, of course, petitioner has used these terms in their more limited meanings, and has perhaps unwittingly discovered his sought after “touchstone”.
Industrial activity commonly means the treatment or processing of raw products in factories. When the product of the soil leaves the farmer, as such, and enters a factory for processing and marketing it has entered upon the status of “industry”. In this status of this industry there would seem to be as much need for the remedial provisions of the Wagner Act, upon principle, as for any other industrial activity.
Petitioner maintains that the nature of the work is the true test. Perhaps it would more nearly conform to the true test to say that the nature of the work modified by the custom of doing it determines whether the worker is or is not an agricultural laborer.
Petitioner argues that if each member of the non-profit cooperative corporation that runs the packing house were to personally hire and direct those doing his own packing and sorting, the work would be agricultural and his employees would be agricultural laborers; that it follows, therefore, that in the case of the same members acting under a single organization to accomplish the same result there can be no change in the nature of the work nor in the status of the persons doing it. The conclusion does not follow. The factual change in the manner of accomplishing the same work is exactly what does change the status of those doing it. The premise laid down by petitioner in this phase of its argument is not, however, the exact situation facing us. The packing house activity is much more than the mere treatment of the fruit. When it reaches the packing house it is then in the practical control of a great selling organization which accounts to the individual farmer under the terms of the statute law and its own by-laws.
There are many instances related in the authorities showing that work done in one way is agricultural labor and workmen doing the same nature of work but under different circumstances are not agricultural laborers, and vice versa. See Trullinger v. Fremont County, 223 Iowa 677, 273 N. W. 124. Also see Miller & Lux, Inc. v. Industrial Accident Commission, 179 Cal. 764, 178 P. 960, 7 A.L.R. 1291, in which it is held that a workman employed by the Land Company to repair farming equipment was engaged in farm labor; Mullen v. Little, 186 App.Div. 169, 173 N.Y.S. 578, 580, where a farm laborer storing ice for use on the farm was held to be a farm laborer for the reason that the work was “incidental to farm purposes”; and Maryland Casualty Co. v. Dobbs, Tex.Civ.App., 1934, 70 S.W.2d 751, where one working for a company whose business was the spraying of citrus trees was held not to be a farm laborer. There is confusion in the so-called threshing machine cases, as may be ascertained by reference to the note in 13 A.L.R. 955.
So to be agricultural labor, the work need not be strictly related to the crop, and every work related strictly to the crop is not of necessity agricultural labor and those doing it agricultural laborers. It is said in Re Boyer, 65 Ind.App. 408, 117 N.E. 507, 508: “While the threshing of wheat may be a part of the work necessary to be done on the farm, the farmer himself rarely does it. On the contrary, he has it done by some one who is specially equipped with the machinery to do this kind of work. Wheat threshing is a business or industrial pursuit in and of itself, entirely separate and independent of farming.” Here is an admirable example of the nature of the work, modified by the custom of doing it affecting the category into which the work falls — agricultural or industrial. See, H. Duys & Co. v. Joseph M. Tone, Commissioner, 125 Conn. 300, 5 A.2d 23.
The opinion in the case of Pinnacle Packing Co. v. State Unemployment Commission, supra, a case arising under a cooperative arrangement for processing and marketing fruit, contains some apt language. We quote: “The fruit growers who are engaged in the care, cultivation, picking, and delivery of the products of the orchard to be processed, graded, packed and marketed are engaged in agricultural labor and are exempt from the provisions of the statute. As soon as the fruit is delivered by the growers to the plaintiff for processing, grading, packing, and marketing, then the exemption ceases. The plaintiffs engaged in processing, grading, and packing and marketing the fruits are engaged in industry and are, therefore, subject to the provisions of the act and are not exempt as being engaged in agricultural labor.”
We conclude that the workers in petitioner’s packing house are not agricultural laborers and are therefore not exempt from the operation of the Act.
Interstate Commerce.
Petitioner contends in its second point as follows: “Briefly, it is the contention of petitioner that when it handles the fruit by picking, grading and packing the same, the fruit is not yet in the channels of trade and commerce, either intrastate or interstate”.
At this late date it hardly seems necessary to devote a great deal of attention to this branch of the case. The facts show that the work done by the packing house is in every sense specialized factory work applied to fruit that has left the orchard. The major part of the fruit is moved directly by the packing house workers, through the agency of two allied corporations, into the rail cars for prompt movement in interstate trade. Most certainly any considerable interference in such work would affect the free flow of interstate commerce. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 98 F.2d 488, 495, certiorari denied 306 U.S. 643, 59 S.Ct. 582, 83 L.Ed. 1043; National Labor Relations Board v. Santa Cruz Fruit Packing Co., 9 Cir., 91 F.2d 790, 791, affirmed 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138, certiorari denied 304 U.S. 575, 58 S.Ct. 1045, 82 L.Ed. 1539; National Labor Relations Board v. Biles-Coleman Lumber Co., 9 Cir., 98 F.2d 18.
It is also too late to argue that there would still be a free flow of fruit entering interstate commerce fully up to the market demand even if no fruit from this packing house should be shipped, and therefore no prohibited effect upon interstate commerce would result. The law condemns practices which substantially affect the free and normal flow of interstate commerce, under conditions that are not denied as existing here. National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S. Ct. 96, 44 L.Ed. 136; McCall v. People of the State of California, 136 U.S. 104, 10 S.Ct. 881, 34 L.Ed. 391, and authorities last above cited.
Were the parties “employees”?
If they were “employees” were they entitled to reinstatement with back pay?
Petitioner next argues that the notice of the shutdown from the manager to .the packing, house workers constitutes a discharge and a complete break in the relation of employer and employee. There were in this business seasonal shutdowns and occasional temporary shutdowns. The Board found that the shutdown in question was not in the nature of an unfair labor practice, but was in fact caused by the condition of the fruit on the trees. The notice itself treats the shutdown as due to conditions beyond the control of the employer and states that “Therefore it wih be necessary that all employees * * be laid off until work is resumed, and are notified to return.” It is argued by petitioner that unless the relationship of employer and employee continued to exist through the period of the lay off, which continued relationship it denies, the Board’s order of reinstatement with back pay from date of resumption cannot be sustained.
This position is based upon § 10 (c) of the Act, 29 U.S.C.A. § 160(c), which authorizes the Board in proper cases to “take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate' the policies of the Act [this chapter]” and upon the definition of the term “employee” as found in § 2 (3) of the Act. This definition is as follows: “(3) The term ‘employee’ shall include any employee * * * and * * any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice * * Petitioner holds that the work has ceased as to the laid off workers and, as found by the Board, the cessation of work was not “as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice”. That therefore they ceased to be employees when the packing house closed down. The Board meets petitioner upon this issue with two answers. The first is that the workers did not cease to be employees with the layoff for the reason that under a proper construction of the statute their “work has not ceased” with the layoff. It is our opinion that the Board’s construction on this phase of the proceeding has support. This shutdown and layoff was no more than a suspension of work. It was not a termination of work. It was in accordance with long established custom. The relation of employer and employee does not always depend upon continuity of actual every day work. In the instant suspension of actual operation the employees of long standing and experience were “laid off until work is resumed” on account of a condition of fruit. The notice' itself holds out a “notice to return” when conditions have become right, which came about ten days later. In the circumstances, we see no reason for differing with the Board in its holding that the layoff because of the temporary shutdown did not sever the relation of employer and employee.
The evidence clearly shows that when the plant reopened after the fruit was in a condition to be handled, the workers named in the complaint other than O. W. Rudick were not put back to work because of their’ union activities. These employees were ready, willing and able to resume work with the reopening of the plant. The Board found that O. W. Rudick was not entitled to reinstatement and he has not resisted this conclusion. In these circumstances the Board’s order for reinstatement of these workers and for back pay from resumption of plant activity was proper. Michaelson v. United State, 7 Cir., 291 F. 940, 942; Iron Molders’ Union v. Allis-Chalmers Co., 7 Cir., 166 F. 45, 52, 20 L. R.A.,N.S., 315; Dail-Overland Co. v. Wyllis-Overland, Inc., D.C., 263 F. 171, 188; Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 136-138, 112 A.L.R. 948; National Labor Relations Board v. Carlisle Lumber Co., supra.
The Board also contends that whether or not the suspension of work for the ten days terminated the relation of employer a.nd employee between the packing house and those at work when the suspension became effective, the order of reinstatement with pay is supported by the provision of § 8 (3) of the Act, 29 U.S.C.A. §-158 (3), prohibiting “discrimination in regard to hire”. As we agree with the Board that the shutdown did not affect the relation of employee and employer as to those working at the time of the shutdown, it is unnecessary for us to consider this additional point.
Subppenas.
Petitioner’s next point is to the effect that requests to the Board for the issuance of certain subpoenas were met with the reply that: “It is necessary for you to furnish statement of reason for application and of evidence you expect to be established by testimony of individuals together with statement of their positions before the Board can act on your application.” Petitioner claims that such requirement encroached upon its rights but that in order to go forward with the proceeding it was compelled to grant this request. Petitioner does not specify any prejudice done it, and a very careful perusal of the evidence does not convince us that it suffered any prejudice by complying with the Board’s request. In the circumstances, even if we were to hold that the request was wholly unwarranted in law (upon which subject we express no opinion) we would not be warranted in nullifying the Board’s order. As tersely put in the Board’s brief, “Due process, however, is not concerned with technicalities, but with prejudicial infringement of substantial rights * * * ”, citing National Labor Relations Board v. Mackay Radio & Tel. Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L. Ed. 1381, and Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 999, 82 L.Ed. 1129.
Petitioner complied with the Board’s request as to all of the persons for whom it requested subpcenas excepting' as to one Grace Stevens. Upon the request for subpoenas under the compliance it did not mention Grace Stevens. It held her name out for the purpose of complaining that it was deprived of her testimony. This procedure did not put petitioner in any better position, in fact, it quite adversely affected it, for the Board had the right to assume that no request was before it regarding a subpoena for her attendance upon the hearing.
The Findings of Fact.
The next point may be clearly understood by quoting the black faced heading under it in petitioner’s brief: “The so-called findings of fact upon which board bases its order are not findings of fact but are admixture of recitation of evidence, argument of the person or persons making the findings, and conclusions of fact not based upon evidence and in utter disregard of material and competent evidence.” We need not consider this point for the reason that petitioner does not point to any single instance in the record supporting the assertion. We are not compelled to search the record for undesignated error claimed upon an omnibus assertion.
Due Process.
The next point is a claim that: “The Board has failed to accord petitioner a fair, full and impartial hearing and in its conduct'of the proceedings has denied petitioner due process of law.”
The statement under the last preceding - point applies as well here.
Petitioner is denied .relief, and the order of the Board is ordered enforced.
It should, however, he understood that this proceeding concerns packing house workers and packing house work solely, and that there are here no facts as to picking the fruit nor as to any treatment of the orchard. It appears from the stipulation of facts that petitioner to some extent does handle the picking, spraying, fertilizing, etc., and that some of the workers in the packing house are at times employed by petitioner to do such work. However, the employment for packing house work and for orchard work are separate and apart.
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
sc_casedisposition | E | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
WATSON v. FORT WORTH BANK & TRUST
No. 86-6139.
Argued January 20, 1988
Decided June 29, 1988
' O’ConnoRí J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, and ScALiAj JJ., joined, and an opinion with respect to Parts II-C and II-D in which Rehnquist, C. J., and White and Scalia, JJ., joined. Black-mun, J., filed an opinion concurring in part and concurring in the judgment, in which Brennan and Marshall,' JJ., joined, post, p. 1000. Stevens-, J.,'filed an opinion concurring in the judgment, post, p. 1011. Kennedy, J., took no part in the consideration or decision of the case.
Art Brender argued the cause and filed briefs for petitioner. Bruce W. McGee argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Jim Mattox, Attorney General, Mary F. Keller, Executive Assistant Attorney General, and James C. Todd; for the American Civil Liberties Union et al. by Deborah A. Ellis, Isabelle Katz Pinzler, and Joan E. Beriin; for the American Psychological Association by Donald N. Bersoff; for the Lawyers’ Committee for Civil Rights Under Law by John Townsend Rich, Conrad K. Harper, Stuart J. Land, Norman Redlich, William L. Robinson, Judith A. Winston, and Richard T. Seymour; and for the NAAC-P Legal Defense and Educational Fund, Inc., et al. by Bill Lann Lee, Stephen M. Cutler, Joan M. Graff, Patricia A. Shiu, Julius LeVonne Chambers, Ronald L. Ellis, Charles Stephen Ralston, Antonia Hernandez, and E. Richard Larson.
Briefs of amici curia.e urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor Generat Ayer, Deputy Assistant Attorney General Clegg, David K. Flynn, and Charles A. Shanor; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, Edward E. Potter, and Gam¡ E. Dodge; for the American Society for Personnel Administration et'al. by Lawrence Z. Lorber and J. Robert Kirk; for the Landmark Legal Foundation by Jerald L. Hill and.Mark J. Bredemeier; and for the Merchants and Manufacturers Association by Paid Grossman.
Justice O’Connor
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, and an opinion with respect to parts II-C and II-D, in which The Chief Justice, Justice White, and Justice Scalia join.
This case requires us to decide what evidentiary standards should be applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., in determining whether an employer’s practice of committing promotion decisions to -the subjective discretion of supervisory employees has led to illegal discrimination.
I
Petitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August 1973. In January 1976, Watson was promoted to a position as teller in the Bank’s drive-in facility. In February 1980, she sought to become supervisor of the tellers in the main lobby; a white male, however, was selected for this job. Watson then sought a position as supervisor of the drive-in bank, but this position was given to a white female. In February 1981, after, Watson had served for about a year as a commercial teller in the Bank’s main lobby, and informally as assistant to the supervisor of tellers, the man holding that position was promoted. • Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. Watson then applied for the vacancy created at the drive-in; a white male was selected for that job. The Bank, which has about 80 employees, had not developed precise and formal criteria for evaluating candidates for the positions for which Watson unsuccessfully applied. It relied instead on the subjective judgment of supervisors who were acquainted with the candidates and with the nature of the jobs to be filled. All the supervisors inv-olved in denying Watson the four promotions at issue were white.
Watson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). After exhausting her administrative remedies, she filed this lawsuit in the United States District Court for the Northern District of Texas. She alleged that the Bank had unlawfully discriminated against blacks in hiring, compensation, initial placement, promotions,' terminations, and other terms and conditions of employment. On Watson’s motion under Federal Rule of Civil Procedure 23, the District Court certified a class consisting of “blacks who applied to or were employed by [respondent] on or after October* 21, 1979 or- who may submit employment applications to [respondent] in the future.” App. 190. The District Court later decertified this broad class because it concluded, in light of the evidence presented at trial, that there was not a common question of law or fact uniting the groups of applicants and employees. After splitting the class along this line, the court found that the class of black employees did not meet the numerosity requirement of Rule 23(a); accordingly, this subclass was decertified. The court also concluded that Watson was not an adequate representative of the applicant class because her promotion claims were not typical of the claims of the member's-of that group. Because Watson had proceeded zealously on behalf of the job applicants, however, the court werrt on to address the merits of their claims. It concluded that Watson had failed to establish a prima facie case of racial discrimination in hiring: the percentage of blacks irr the Bank's work force approximated the percentage of blacks in the metropolitan area where the Bank is located. App. 199-202.
The District Court addressed Watson’s individual claims under the evidentiary standards that apply irr a discriminatory treatment case. See McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. Accordingly, the action was dismissed. App. 195-197, 203.
A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed in part. 798 F. 2d 791 (1986). The majority concluded that there was no abuse of discretion in the District Court’s class decertification decisions. In order to avoid unfair prejudice to members of the class of black job applicants, however, the Court of Appeals vacated the portion of the judgment affecting them and remanded with instructions to dismiss those claims without prejudice. The majority affirmed the District Court’s conclusion that Watson had failed to prove her claim of racial discrimination under the standards set out in McDonnell Douglas, supra, and Burdine, supra.
Watson argued that the District Court had erred in failing to apply “disparate impact” analysis to her claims of discrimination in promotion. Relying on Fifth Circuit precedent, the majority of the Court of Appeals panel held that “a Title VII challenge to an allegedly discretionary promotion system is properly analyzed under the disparate treatment model rather than the disparate impact model.” 798 F. 2d, at 797. Other Courts of Appeals have held that disparate impact analysis may be applied to hiring or promotion systems that involve the use of “discretionary” or “subjective” criteria. See, e. g., Atonio v. Wards Cove Packing Co., 810 F. 2d 1477 (CA9) (en banc), on return to panel, 827 F. 2d 439. (1987), cert denied, No. 87-1388, 485 U. S. 989 (1988), cert. pending, No. 87-1387; Griffin v. Carlin, 755 F. 2d 1516, 1522-1525 (CA11 1985). Cf. Segar v. Smith, 238 U. S. App. D. C. 103, 738 F. 2d 1249(1984), cert. denied, 471 U. S. 1115 (1985). We granted certiorari to resolve the conflict. 483 U. S. 1004 (1987).
II
A
Section 703 of the Civil Rights Act of 1964, 42 U. S. C. §20Q0e-2, provides:
“(a) It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
. “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an. employee, because of such individual’s race, color, religion, sex, or national origin.
“(h) Notwithstanding any other provision of this sub-chapter, it shall not be an unlawful employment practice for an employer... to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin....”
Several of our decisions have dealt with the evidentiary standards that apply when an individual alleges that an employer has treated that particular person less favorably than others beeause of the plaintiff’s race, color, religion, sex, or national origin. In such “disparate treatment” cases,' which involve “the most easily understood type of discrimination,” Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977), the plaintiff is required to' prove that the defendant had a discriminatory intent or motive. In order to facilitate the orderly consideration of relevant evidence, we have devised a series of shifting evidentiary burdens that are “intended'progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U. S., at 255, n. 8. Under that scheme, a prima facie case is ordinarily established by proof that the employer, after having rejected the plaintiff’s application for a job or promotion, continued to seek applicants with qualifications similar to the plaintiff’s. Id., at 253, and n. 6. The burden of proving a prima facie case is “not onerous,” id., at 253, and the employer in turn may rebut it simply by producing some evidence that it had legitimate, noncliscriminatory reasons for the decision. Id., at 254-255. If the defendant carries this burden of production, the plaintiff must prove by a preponderance of all the evidence in the case that the legitimate reasons offered by the defendant were a pretext for discrimination. Id., at 253, 255, n. 10. We have cautioned that these shifting burdens are meant only to aid courts and litigants in arranging the presentation of evidence: “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id., at 253. See also United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 715 (1983).
In Griggs v. Duke Power Co., 401 U. S. 424 (1971), this Court held that a plaintiff need not necessarily prove intentional discrimination in order top establish that an employer has violated § 703.' In certain cases, facially neutral employr ment practices that have significant adverse effects on protected groups have been held to violate the Act without proof that the employer adopted those practices-with-a discriminatory intent. The factual issues- and the character of the evidence are inevitably somewhat different when the plaintiff is-exempted”from the need to prove intentional discrimination. See Burdine, supra, at 252, n. 5; see also United States Postal Service Bd. of Governors v. Aikens, supra, at 713, n. 1; McDonnell Douglas, 411 U. S., at 802, n. 14; Teamsters, supra, at 335-336, n. 15. The evidence in these “disparate impact” cases usually focuses on statistical disparities, rather, than specific incidents, and on competing explanations for.those disparities.
The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where dispárate treatment analysis is used. See, e. g., Washington v. Davis, 426 U. S. 229, 253-254 (1976) (Stevens, J.. concurring). Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.
Perhaps the most obvious examples of such functional equivalence have been found where facially neutral job requirements necessarily operated to perpetuate the effects of intentional discrimination that occurred before Title VII was enacted. In Griggs itself,, for example, the employer had a history of overt racial discrimination that predated the enactment of the Civil Rights Act of 1964. 401 U. S., at 426-428; Such conduct had apparently ceased thereafter, but the-employer continued to follow employment policies that had “a markedly disproportionate” adverse effect on blacks. Id., at 428-429. Cf. Teamsters, supra, at 349, and n, 32. The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma requirement, were not demonstrably related to the jobs for which they were used. 401 U. S., at 431-432. Believing that diplomas and tests could become “masters of reality,” id., at 433, which would perpetuate the effects of pre-Act discrimination, the Court concluded that such practices could not be defended simply on the basis of their facial neutrality or on the basis of the employer’s lack of discriminatory intent.
This Court has repeatedly reaffirmed the principle that some facially neutral employment practices may violate Title VII even in the absence of a demonstrated discriminatory intent. We have not limited this principle to cases in which the challenged practice served to perpetuate the effects of pre-Act intentional discrimination. Each of our subsequent decisions, however, like Griggs itself, involved standardized employment tests or criteria. See, e. g., Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975) (written aptitude tests); Washington v. Davis, supra (written test of verbal skills); Dothard v. Rawlinson, 433 U. S. 321 (1977) (height and weight requirements); New York City Transit Authority v. Beazer, 440 U. S. 568 (1979) (rule against employing drug addicts); Connecticut v. Teal, 457 U. S. 440 (1982) (written examination). In contrast, we have consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review hiring and promotion decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria. See, e. g., McDonnell Douglas Corp. v. Green, supra (discretionary decision not to rehire individual who engaged in criminal acts against employer while laid off); Furnco Construction Corp. v. Waters, 438 U. S. 567 (1978) (hiring decisions based on personal knowledge of candidates and recommendations); Texas Dept. of Community Affairs v. Burdine, supra (discretionary decision to fire individual who was said not to get along with co-workers); United States Postal Serv ice Bd. of Governors v. Aikens, 460 U. S., at 715 (discretion-ary promotion decision).
Our decisions have not addressed the question whether disparate impact analysis may be applied to cases in which subjective criteria are used to make employment decisions. As noted above, the Courts of Appeals are in conflict on the issue. In order to resolve this conflict, we must determine whether the reasons that support the use of disparate impact analysis apply to subjective employment practices, and whether such analysis can be applied in this new context under workable evidentiary standards..
B
The parties present us with stark and uninviting alternatives. Petitioner contends that subjective selection methods are at least as likely to havé discriminatory effects as are the kind of objective tests at issue in Griggs and our other disparate impact cases. Furthermore, she argues, if disparate impact analysis is confined to objective tests, employers will be able to substitute subjective criteria having substantially identical effects, and Griggs will become a dead letter. Respondent and the United States (appearing as amicus curiae) argue that conventional disparate treatment analysis is adequate to accomplish Congress’ purpose in enacting Title VII. They also argue that subjective selection practices would be so impossibly difficult to defend under disparate impact analysis that employers would be forced to adopt numerical quotas in order to avoid liability.
We are persuaded that our decisions in Griggs and succeeding cases could largely be nullified if disparate impact analysis were applied only to standardized selection practices. However one might distinguish “subjective” from “objective” criteria, it is apparent that selection systems that combine both types would generally have to be considered subjective in nature. Thus, for example, if the employer in Griggs had consistently preferred applicánts who had a high school diploma and who passed the company’s general aptitude test, its selection system could nonetheless have been considered “subjective’’ if it also included brief interviews with the candidates. So long as an employer refrained from making standardized criteria absolutely determinative, it would remain free to give such tests almost as much weight as it chose without risking a disparate impact challenge. If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished.
We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. In either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. It is true, to be sure, that an employer’s policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct. Especially in relatively small businesses like respondent’s, it may be customary and quite reasonable simply to delegate employment decisions to those employees who are most familiar with the jobs to be filled and with the candidates for those jobs. It does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. Furthermore, even if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain. In this case, for example, petitioner was apparently told at one point that the teller position was a big responsibility. with “a lot of money... for blacks to have to count.” App. 7. Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. If an employer's undisciplined system of subjective decisionmaking has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against discriminatory actions should not apply. In both circumstances, the employer’s practices may be said to “adversely affect [an individual’s] status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42-U. S. C. § 2000e-2(a)(2). We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases.
C
Having decided that disparate impact analysis may in principle be applied to subjective as well as to objective practices, we turn to the evidentiary standards that should apply in such cases. It is here that the concerns raised by respondent have their greatest force. • Respondent contends that a plaintiff may establish a prima facie case of disparate impact through the use of bare statistics, and that the defendant can rebut this statistical showing only by justifying the challenged practice in terms of “business necessity,” Griggs, 401 U. S., at 431, or “job relatedness,” Albemarle Paper Co., 422 U. S., at 426. Standardized tests and criteria, like those at issue in our previous disparate impact cases, can often be justified through formal “validation studies,” which seek to determine whether discrete selection criteria predict actual on-the-job performance. See generally id., at 429-436. Respondent warns, however, that “validating” subjective selection criteria in this way is impracticable. Some qualities — for example, common sense, good judgment, originality, ambition, loyalty, and tact — cannot be measured accurately through standardized testing techniques. Moreover, success at many jobs in which such qualities are crucial cannot itself be measured directly. Opinions often differ when managers and supervisors are evaluated, and the same can be said for many jobs that involve close cooperation with one’s co-workers or complex and subtle tasks like the provision of professional services or personal counseling. Because of these difficulties, we are told, employers will find it impossible to eliminate subjective selection criteria and impossibly expensive to defend such practices in litigation. Respondent insists, and the United States agrees, that employers’ only alternative will be to adopt surreptitious quota systems in order to ensure that no plaintiff can establish a statistical prima facie case.
We agree that the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures. It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance. See Sheet Metal Workers v. EEOC, 478 U. S. 421, 489 (1986) (O’Connor, J., concurring in part and dissenting in part). It would be equally unrealistic to suppose that employers can eliminate, or discover and explain, the myriad of innocent causes that may leád to statistical imbalances in the composition of their work forces. Congress has specifically provided that employers are not required to avoid “disparate impact” as such:
“Nothing contained in [Title VII] shall be interpreted to require any employer... to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer... in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available'work force in any community, State, section, or other area.” 42 U. S. C. §2000e-2(j).
Preferential treatment and the use of quotas by public employers subject to Title VII can violate the Constitution, see, e. g., Wygant v. Jackson Bd. of Education, 476 U. S. 267 (1986), and it has long been recognized that legal rules leaving any class of employers with “little choice” but to adopt such measures would be.“far from the intent of Title VII.” Albemarle Paper Co., supra, at 449 (Blackmun, J., concurring in judgment). Respondent and the United States are thus correct when they argue that extending disparate impact analysis to subjective employment practices has the potential to create a Hobson’s choice for employers and thus to lead in practice to perverse results. If quotas and preferential treatment become the only cost-effective means of avoiding expensive litigation and potentially catastrophic liability, such measures will be widely adopted. The prudent employer will be careful to ensure that its programs are discussed in euphemistic terms, but will be equally careful to ensure that the quotas are met. Allowing the evolution of disparate impact analysis to lead to this result would be contrary to Congress’ clearly expressed intent, and it should not be the effect of our decision today.
D
We do not believe that disparate impact theory need have any chilling effect on legitimate business practices. We rec.ognize, however, that today’s extension of that theory into the context of subjective selection practices could increase the risk that employers will be given incentives to adopt quotas or to engage in preferential treatment. Because Congress has so clearly and emphatically expressed its intent that Title VII not lead to this result, 42 U. S. C. § 2000e-2(j), we think it imperative to explain in some detail why the evi-dentiary standards that apply in these cases should serve as adequate safeguards against the danger that Congress recognized. Our previous decisions offer guidance, but today’s extension of disparate impact analysis calls for a fresh and somewhat closer examination of the constraints that operate to keep that analysis within its proper bounds.
First, we note that the plaintiff’s burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged. Although this has been relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Cf. Connecticut v. Teal, 457 U. S. 440 (1982).
Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Our formulations, which have never been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation. In Griggs, for example, we examined “requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants.” 401 U. S., at 426. Similarly, we said in Albemarle Paper Co. that plaintiffs are required to show “that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.” 422 U. S., at 425. Later cases have framed the test in similar terms. See, e. g., Washington v. Davis, 426 U. S., at 246-247 (“hiring and promotion practices disqualifying substantially disproportionate numbers of blacks”); Dothard, 433 U. S., at 329 (employment standards that “select applicants for hire in a significantly discriminatory pattern”); Beazer, 440 U. S., at 584 (“statistical evidence showing that an employment practice has the effect of denying the members of one race equal access to. employment opportunities”); Teal, supra, at 446 (“significantly discriminatory.impact”).
Nor are courts or defendants obliged to assume that plaintiffs’ statistical evidence is reliable. “If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own.” Dothard, 438 U. S., at 331. See also id., at 338-339 (Rehn-QUIST, J., concurring in result and concurring in part) (“If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs’ statistics that does not appear on their face, the opportunity to challenge them is available to the defendants just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which the plaintiffs’ evidence should be accorded”). Without attempting to catalog all the weaknesses that may be found in such evidence, we may note that typical examples include small or incomplete data sets and inadequate statistical techniques. See, e. g., Fudge v. Providence Fire Dept., 766 F. 2d 650, 656-659 (CA1 1985). Similarly, statistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value. See, e. g., Hazelwood School Dist. v. United States, 433 U. S. 299, 308 (1977) (“[P]roper comparison was between the racial composition of [the employer’s] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market”) (footnote omitted). Other kinds of deficiencies in' facially plausible statistical evidence may emerge from the facts of particular cases. See, e. g., Carroll v. Sears, Roebuck & Co., 708 F. 2d 183, 189 (CA5 1983) (“The flaw in the plaintiffs’ proof was its failure to establish the required causal connection between the challenged employment practice (testing) and discrimination in the work force. Because the test does not have a cut-off and is only one of many factors in decisions to hire or promote, the fact that blacks score lower does not automatically result in disqualification of disproportionate numbers of blacks as in cases involving cutoffs”) (citation omitted); Contreras v. Los Angeles, 656 F. 2d 1267, 1273-1274 (CA9 1981) (probative value of statistics impeached by evidence that plaintiffs failed a written examination at a disproportionately high rate because they did not study seriously for it), cert. denied, 455 U. S. 1021 (1982).
A second constraint on the application of disparate impact theory lies in the nature of the “business necessity” or “job relatedness” defense. Although we have said that an employer has “the burden of showing that any given requirement must have a manifest relationship to the employment in question,” Griggs, 401 U. S., at 432, such a formulation should not be interpreted as implying that the ultimate burden of proof can be shifted to the defendant. On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times. Thus, when a plaintiff has made out a prima facie case of disparate impact, and when the defendant has met its burden of producing evidence that its employment practices are based on legitimate business reasons, the plaintiff must “show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.” Albemarle Paper Co., 422 U. S., at 425 (citation omitted; internal quotation marks omitted). Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer’s legitimate business goals. The same factors would also be relevant in determining whether the challenged practice has operated as the functional equivalent of a pretext for discriminatory treatment. Cf. ibid.
Our cases make it clear that employers are not required, even when defending standardized or objective tests, to introduce formal “validation studies” showing that particular criteria predict actual on-the-job performance. In Beazer, for example, the Court considered it obvious that “legitimate employment goals of safety and efficiency” permitted the exclusion of methadone users from employment with the New York City Transit Authority; the Court indicated that the “manifest relationship” test was satisfied even with respect to non-safety-sensitive jobs because those legitimate goals were “significantly served by” the exclusionary rule at issue in that case even though the rule was not required by those goals. 440 U. S., at 587, n. 31. Similarly, in Washington v. Davis, the Court held that the “job relatedness” requirement was satisfied when the employer demonstrated that a written test was related to success at a police training academy “wholly aside from [the test’s] possible relationship to actual performance as a police officer.” 426 U. S., at 250. See also id., at 256 (Stevens, j., concurring) (“[A]s a matter of law, it is permissible for the police department to use a test for the purpose of predicting ability to master a training program even if the test does not otherwise predict ability to perform on the job”).
In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a “manifest rélationship to the employment in question.” It is self-evident that many jobs, for example those involving managerial responsibilities, réquire personal qualities that have never been considered amenable to standardized testing. In evaltiatingclaims that discretionary employment practices are insufficiently related to legitimate business purposes, it must be borne in mind that “[cjourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.” Furnco Construction Corp. v. Waters, 438 U. S., at 578. See also Zahorik v. Cornell University, 729 F. 2d 85, 96 (CA2 1984) (“[The] criteria [used by a university to award tenure], however difficult to apply and however much disagreement they generate in particular cases, are job related.... It would be a most radical interpretation of Title VII for a court to enjoin use of an historically settled process and plainly relevant criteria largely because they lead to decisions which are difficult for a court to review”). In sum, the high standards of proof in disparate impact cases are sufficient in our view to avoid giving employers incentives to modify any normal and legitimate practices by introducing quotas or preferential treatment.
Ill
We granted certiorari to determine whether the court below properly held disparate impact analysis inapplicable to a subjective or discretionary promotion system, and we now hold that such analysis may be applied. We express no opinion as to the other rulings of the Court of Appeals.
Neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner made out a prima facie case of discriminatory promotion practices under disparate impact theory. It may be that the relevant data base is too small to permit any meaningful statistical analysis, but we leave the Court of Appeals to decide in the first instance, on the basis of the record and the principles announced today, whether this case can be resolved without further proceedings in the District Court. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
The dissenting judge argued that the District Court had abused its discretion in decertifying the broad class of black employees and applicants. He also argued that Watson had succeeded in proving that the Bank had discriminated against this class, and that the case should be remanded so that appropriate relief could be ordered. 798 F. 2d, at 800-815.
Both concurrences agree that we should, for the first time, approve the use of disparate impact analysis in evaluating subjective selection practices. Unlike Justice Stevens, we believe that this step requires usTo provide the lower courts with appropriate evidentiary guidelines, as we have previously done for disparate treatment cases. Moreover, we do not believe that each verbal formulation used in prior opinions to describe the evidentary standards in disparate impact cases is automatically applicable in light of today’s decision. Cf. post, at 1000-1001, 1005-1006 (Black-MUN, J., concurring in part and concurring in judgment). Congress expressly provided that Title VII not be read to require preferential treatment or numerical quotas. 42 U. S. C. §2000e-2(j). This congressional mandate requires in our view that a decision to extend the reach of disparate impact theory be accompanied by safeguards against the result that Congress clearly said it did not intend.
Faced with the task of applying these general statements to particular cases, the lower courts have sometimes looked for more specific direction in the EEOC’s Uniform Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1987). See, e. g., Bushey v. New York State Civil Service Comm’n, 733 F. 2d 220, 225-
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer: |
songer_appbus | 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 "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mortimer W. COAKLEY, Plaintiff, Appellant, v. POSTMASTER OF BOSTON, MASSACHUSETTS et al., Defendants, Appellees.
No. 6758.
United States Court of Appeals First Circuit.
March 16, 1967.
David D. Dretler, Boston, Mass., for appellant.
Gordon A. Martin, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., Thomas P. O’Connor, Asst. U. S. Atty., were on brief, for appellees.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
Plaintiff appeals from the district court’s refusal to set aside an order of the defendant postmaster discharging him from his civil service position in the Boston Post Office. While holding this position plaintiff was also employed as a full-time fireman (boiler tender) by the Boston Housing Authority. The postmaster claims that Postal Regulation 712.811 prohibits plaintiff from working full-time for the Housing Authority while regularly employed by the Post Office and ordered him to give up one job or the other. He refused to relinquish either job and the postmaster discharged him.
Regulation 712.811 states “Regular (per annum) postal employees may hold state or local government part-time positions.” The postmaster asserts that this regulation by implication precludes regular postal employees from holding full-time positions with a state or local government. Plaintiff contends that this regulation does not apply to him because his job with the Boston Housing Authority is not a “state or local office” within the meaning of this regulation and that in any event the regulation itself is unreasonable.
We agree with the Postmaster that Regulation 712.811 precludes by implication regular postal employees from holding state or local government full-time positions. Any other interpretation would not make sense. We also agree that even though the title of the regulation uses the word “office” its applicability is not limited to top echelon officials. This regulation is much broader in scope and is intended to cover outside employment in general. Nor can we accept plaintiff’s argument that the Authority is not a state or local agency within the purview of the regulation. Cf. E. W. Wiggins Airways, Inc. v. Massachusetts Port Auth., 362 F.2d 52, 55 (1st Cir., cert, denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226 (1966). That case held that a state Authority with similar statutory powers and duties was a public agency.
We now turn to the question of whether this regulation is reasonable. Rules and regulations made by government agencies in order to be valid must have a rational basis. Pan American Petroleum Corp. v. Federal Power Comm., 352 F.2d 241, 244 (10th Cir. 1965); N.L.R.B. v. Esquire, Inc., 222 F.2d 253, 256 (7th Cir. 1955). The difficulty in this case is that neither the record nor the regulation itself reveals its rationale. For this reason, we remanded the case to the district court for the limited purpose of receiving evidence as to its rationale. Regrettably, this hearing left the answer as much in the dark as it was before.
Clearly, under this regulation plaintiff, while holding his post office position, could work as a full-time boiler tender for a private employer but could only work as a part-time boiler tender if his employer were a state or municipal agency. We have not been given nor have we discovered any good reason for such a distinction. It can hardly be said that this distinction is based on job interference in view of the fact that there are other regulations under which the postmaster may forbid a postal employee from holding any outside position, public or private, full-time or part-time, which tends to interfere with his postal employment. Moreover, from a practical point of view there appears to be no intrinsic difference between public and private employment. Both demand a high degree of loyalty and require that the employee render efficient service, one no less than the other. Nor do we think that considerations based on sovereignty or comity between nation and state or the likelihood of conflicts of interest between the two, especially in times of emergency, enter into or constitute the rationale of this rule. For example, a full-time postal employee, working part-time for a state or municipal agency would be just as subject to conflicting demands on his time in case of an emergency as would an employee holding two full-time positions.
We are not persuaded by the government’s argument that the long history of prohibitions against dual office holding, both federal and state, and the fact that these prohibitions have been widely adopted and accepted in and of itself supports the reasonableness of this particular regulation. This is a non sequitur. We are not considering the reasonableness of a regulation forbidding all “moonlighting.” Cf. Mulry v. Driver, 366 F.2d 544 (9th Cir. 1966). The government further points out that until recently regular civil service employees were precluded from all outside public employment and the fact that this regulation does not go the full distance in relaxing this prohibition does not make it unreasonable. This argument falls short in that it sheds no light whatever on the rationale behind the distinction which the rule makes between apparently identical public and private employment.
In the absence of any good reason for such a distinction, it would seem that it can only be based on a per se objection to regular postal employees holding a second full-time public position as distinquished from a second full-time private one. In other words, the only reason for this distinction is that it is so because it is so. From this we can only conclude that the regulation in question is unreasonable on its face.
Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion.
. Coakley v. United States Civil Service Commissioners, 252 F.Supp. 639 (D.Mass. 1966).
. There is no dispute that plaintiff, a full-time career mail handler, was a regular (per annum) postal employee at the time of his discharge.
. He also contends that this regulation violates the Fourteenth Amendment in that it discriminates against a group but we find no merit in this contention.
. For the most part, the defendant merely produced certain documents tracing the history and development of rules with reference to outside employment, none of which reveal the reasoning behind the distinction between full-time public and full-time private employment as made in the rule in question. Additionally, the defendants listed several state cases dealing with the various state prohibitions against dual office holding.
. Sections 712.82 and 744.451.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
sc_issuearea | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area 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. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
SWENSON, WARDEN v. STIDHAM
No. 71-224.
Argued October 11, 1972
Decided December 7, 1972
White, J., delivered the opinion for a unanimous Court.
Kenneth M. Romines, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the brief was John C. Danforth, Attorney General.
Mark M. Hennelly, by appointment of the Court, 405 U. S. 913, argued the cause and filed a brief for respondent.
Mr. Justice White
delivered the opinion of the Court.
This case has a long and tortured history and is not yet concluded. At this juncture the question is whether, absent further state court proceedings to determine the voluntariness of his confession, respondent’s 1955 conviction for murder is vulnerable to attack under the Fourteenth Amendment as construed and applied in Jackson v. Denno, 378 U. S. 368 (1964).
In July 1955, respondent Stidham was convicted of first-degree murder of a fellow inmate during a riot. He was sentenced to life imprisonment. He was represented by experienced counsel who challenged his confession when it was offered at trial. A full evidentiary hearing outside the presence of the jury was held. Stidham’s testimony as to the relevant circumstances surrounding his confession was in sharp conflict with that of the officers. His claim was that he had been subjected to gross physical abuse; the officers denied the claim. At the conclusion of the hearing, the trial judge admitted the confession with the following ruling:
“THE COURT: [Exhibit] 16 and 16-1, it is the Court’s opinion that the matters concerning the statement should be offered in the presence of the Jury, subject of course to any attacks as to its credibility by the Defendant. The Defendant has of course the right to proceed to challenge the voluntariness of the statement and confession, even before the Jury, but it is the Court’s opinion that upon the evidence that has been offered before the Court and outside of the hearing of the Jury, ... the statement is and should be admissible in evidence, subject to further examinations of the witnesses which might be conducted, so we may proceed with Sergeant Little, as to his identification before the Jury of the statement in question, Exhibit 16 and 16-1.
“MR. HENNELLY: In other words, the Court is overruling my Motion, and request of the Court to hold as a matter of law, that those statements were involuntary, is that right?
“THE COURT: That is right. Mr. Sheriff will you bring the Jury back in?”
Stidham’s conviction was affirmed on appeal in State v. Stidham, 305 S. W. 2d 7 (Mo. 1957). A motion to vacate was denied and the denial affirmed, 403 S. W. 2d 616 (Mo. 1966). On a second motion to vacate, however, the Missouri Supreme Court ordered an evi-dentiary hearing in accordance with its newly revised post-conviction procedures. State v. Stidham, 415 S. W. 2d 297 (1967). Among the issues to be heard and decided was whether Stidham’s conviction was infirm under Jackson v. Denno and the Due Process Clause of the Fourteenth Amendment.
In compliance with this order, an evidentiary hearing was held on December 5, 1968, before Judge Godfrey in the Circuit Court of the City of St. Louis. The court heard oral testimony from both Stidham and witnesses offered by the State; it also had before it the transcript of the prior proceedings as well as certain stipulations of fact by the parties. In April 1969, the court issued its opinion, with findings of fact and conclusions of law, denying the relief requested. With respect to the confession issue, the court first concluded that the judge himself at Stidham’s trial had found the confession voluntary and had thus complied with the rule of Jackson v. Denno. As to voluntariness vel non, the court said:
“As to subparagraph b concerning the averment that 'the overwhelming evidence was that the statement was involuntary because of coercion exerted on movant/ this contention was raised and profusely litigated in State vs. Stidham, supra, and the Court finds it no longer open to question here. State vs. Statler, supra; Crawford vs. State, supra.
“It should be noted that the evidence concerning the issue of voluntariness was greatly conflicting and was to be resolved by the trial court in the first instance and the jury in the second having regard to the credibility of the witnesses. This issue should now be considered closed, and this Court finds it to be so.”
This judgment was affirmed in the Missouri Supreme Court. State v. Stidham, 449 S. W. 2d 634 (1970). Agreeing first that the judge at Stidham’s trial had with sufficient clarity found the confession voluntary and admissible in evidence, the court then held that in any event Stidham had been given a new evidentiary hearing and his confession again determined to be voluntary by the circuit court. In its view, the circuit court had “found, as had the previous court, that the oral and written confessions were voluntary . . . .” Based upon its own extensive analysis of the record, the Missouri Supreme Court also concluded that the finding of volun-tariness was “overwhelmingly supported and procedurally and factually the cause meets all the requirements of the federal cases and there has been no invasion of due process.” Id., at 644.
Stidham then resorted to federal habeas corpus, presenting several issues including the confession matter. The United States District Court for the Western District of Missouri, after having examined the full record of the state court proceedings, denied the petition without a hearing but with an opinion holding that there had been no violation of Jackson v. Denno because the state trial judge had satisfactorily found the confession voluntary prior to submitting it to the jury. 328 F. Supp. 1291 (1970).
The Court of Appeals reversed by a divided vote. 443 F. 2d 1327 (CA8 1971). Its understanding of Missouri law at the time of Stidham's trial was that the trial judge was not required to make a finding on voluntariness himself, but was permitted to submit the issue to the jury in the first instance. As the Court of Appeals saw it, this is precisely what the trial court did: the finding that the confession was not involuntary as a matter of law was not an independent assessment of voluntariness but merely a statement that the issue was one for the jury. Because in its view there had never been a reliable judicial determination of the facts and of the ultimate issue of voluntariness, either at trial or in later proceedings, the Court of Appeals reversed the judgment and remanded the case to the District Court, it being contemplated that the State would be allowed “reasonable time to make an error-free determination on the voluntariness of the confession at issue . . . Sigler v. Parker, 396 U. S. 482, 484 (1970). We granted certiorari, 404 U. S. 1058 (1972).
We are first asked to hold that the Court of Appeals erred in concluding that Stidham's trial judge failed to comply with the requirement of the Fourteenth Amendment as construed in Jackson v. Denno that there must be a judicial finding of voluntariness before a challenged confession is submitted to the jury. Petitioner's position is not without force, and begins with the proposition that the Court of Appeals was too much influenced by what the trial judge might have done under the Missouri law prevailing at the time and too little by what he actually did. Even if the controlling rule permitted submission of a challenged confession to the jury without the judge’s own determination of voluntariness, that rule, the argument goes, did not prevent him from resolving the disputed issues of fact prior to admitting the confession into evidence. Obviously, it is said, Stid-ham’s trial judge took the latter course, for (1) he held a full evidentiary hearing outside the presence of the jury, a wholly unnecessary and time-wasting procedure if he was merely to determine if there was a disputed issue as to voluntariness that should be submitted to the jury and (2) having heard the evidence, he denied the motion to suppress and found the confession not involuntary as a matter of law, a conclusion necessarily indicating that the judge resolved the disputed issues against Stidham, for had he believed him rather than the police, it is inconceivable that the confession would have been submitted to the jury. Finally, it is urged that the Missouri courts and the Federal District Court construed the trial judge’s ruling as equivalent to an affirmative finding that the confession was voluntary and that the Court of Appeals should have accepted this interpretation of the proceedings in the lower courts.
The issue, then, is not free from doubt, but it is evident that we need not decide it in this case, for the Court of Appeals erred in another respect that requires reversal of its judgment.
Even if the trial procedure was flawed with respect to the challenged confession, Jackson v. Denno does not entitle Stidham to a new trial if the State subsequently provided him an error-free judicial determination of the voluntariness of his confession — error-free in that the determination was procedurally adequate and substantively acceptable under the- Due Process Clause. Jackson v. Denno, 378 U. S., at 393-396. Here, the Missouri courts, in connection with Stidham’s second motion to vacate his sentence, unquestionably furnished a procedurally adequate evidentiary hearing, and the outcome was adverse to Stidham. But it is said that the St. Louis Circuit Court considered itself bound by prior proceedings and never independently determined that Stidham’s confession was voluntarily given. Reliance is placed on Judge Godfrey’s statement that the evidence was conflicting, that the issue was for the trial court and jury and that “[the] issue should now be considered closed, and this Court finds it to be so.”
This contention is in the teeth of the Missouri Supreme Court’s prior order reopening the entire matter and directing the trial judge to hold a full evidentiary hearing and then “to decide all issues of fact and questions of law . . . .” 415 S. W. 2d, at 298. The Missouri Supreme Court later thought its mandate had been complied with and expressly read the Circuit Court as having “found, as had the previous court, that the oral and written confessions were voluntary . . . .” 449 S. W. 2d, at 644. What is more, the Supreme Court carefully reviewed the record, noting that “the testimony in contradiction of Stidham’s uncorroborated claims was all but overwhelming,” id., at 641, and that the patrol, police and prison officers — “all these witnesses, all produced by the state, categorically or implicitly refuted all of Stidham’s claims of mistreatment, either physical or mental.” Id., at 643-644. The court’s conclusion was that the finding of voluntariness was “overwhelmingly supported” and that there had been no invasion of due process. Id., at 644.
We are not inclined to disagree with the Missouri Supreme Court’s interpretation of the Circuit Court’s opinion and judgment. We also hold that as between the two courts the Jackson v. Denno error, if any, was sufficiently remedied.
This, of course, does not end the matter. A state prisoner is free to resort to federal habeas corpus with the claim that, contrary to a state court’s judgment, his confession was involuntary and inadmissible as a matter of law. The Court of Appeals did not reach this issue. We are asked to decide the question here but it is not our function to deal with this issue in the first instance.
The judgment of the Court of Appeals for the Eighth Circuit is reversed and the cause is remanded for further proceedings consistent with this opinion.
So ordered.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer: |
songer_counsel1 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
NATIONAL LABOR RELATIONS BOARD et al., Petitioners, v. DAVID BUTTRICK COMPANY, Respondent.
No. 6636.
United States Court of Appeals First Circuit.
Heard April 5 and 6, 1966.
Decided May 26, 1966.
Warren M. Davison, Washington, D. C. , with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Nancy M. Sherman and Linda R. Sher, Washington, D. C., were on brief, for petitioner.
Mark G. Kaplan, Boston, Mass., with whom Samuel E. Angoff and Angoff, Goldman, Manning & Pyle, Boston, Mass., were on brief, for Milk Wagon Drivers and Creamery Workers Union, Local No. 380, intervening petitioner.
John J. Delaney, Jr., Boston, Mass., with whom Murray S. Freeman, Gordon P. Ramsey, Duane R. Batista and Nutter, McClennen & Fish, Boston, Mass., were on brief, for respondent.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.
OPINION OF THE COURT.
COFFIN, Circuit Judge.
This petition of the National Relations Board seeks enforcement of a Board order that respondent company shall henceforth engage in collective bargaining in good faith with the exclusive representative of its employees, Milk Wagon Drivers and Creamery Workers Union, Local No. 380, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America. Respondent’s position in this unfair labor practice proceeding and in an earlier representation proceeding has been that Local 380 is subject to a disqualifying conflict of interest by reason of its alleged subservience to International and the existence of a substantial loan by a pension fund, serving International’s members in another geographical area, to Whiting Milk Company, one of respondent’s competitors.
The conflict is asserted to lie in pressures that could be brought to bear on Local 380, through efforts of the Fund and International to protect the loan, to take action adverse to or refrain from taking action favorable to respondent and its employees. The Board and its subordinate officers have consistently ruled that there has been insufficient showing of such a connection between Local 380 and the Fund or such participation by the Local in the loan negotiations as to disqualify it from serving as the bargaining agent for respondent’s employees.
Factual Background
Respondent is a dairy products processor and distributor, with its principal place of business in Arlington, Massachusetts. Until September 1964, respondent had approximately thirty drivers servicing twenty-three retail milk delivery routes in some eighteen communities in the Greater Boston area. Eight routes were in Arlington where it was a major distributor. Competition in the entire area served involved several other companies and several hundred milk route drivers.
Local 380 has since 1910 represented milk company employees in the Boston area, and has about 1500 members who are employed by five or six milk companies and several other enterprises. Of these, 600 are employed by Whiting, which serves a much wider area than Greater Boston, and includes neighboring states. Local 380 .is an affiliate of International, and subject to its constitution. Since 1961 it has had its own by-laws, which deal with membership requirements, dues, meeting rules, duties and election of officers and barn stewards, and methods of approving compensation of officers, expenditures, and collective bargaining agreements.
After corporate reorganization in a federal district court, Whiting came under new management, in or around 1960. Financing was secured through short term bank loans. In 1962, Whiting was exploring sources of longer term financing. The chairman of the board of Whiting became interested in discussing the possibilities of a loan from the Fund and approached a business agent of Local 380 for an introduction to the General President of International. A meeting took place betweeen the two men in July 1962 and a meeting of the Fund’s trustees and Whiting’s chairman occurred in September 1962, followed by another meeting of the two men in the early spring of 1963. Local 380 played no part in any negotiations. Finally, in the spring of 1963, a loan in the total amount of $4 million was forthcoming, being secured by mortgages of real and personal property, including good will, a pledge of all stock, open end resignations of principal officers and directors, and the right to operate the debtor’s business in case of default of any obligation “without restrictions or limitations of any kind”. A year later, in July 1964, application was made for an additional loan of $700,000, for expansion into the distribution of refrigerated foods. This was granted in January 1965.
In September 1964, 29 of respondent’s retail driver employees went on strike, which strike is still continuing, no replacements having been hired. On October 7, 1964, the Board’s Regional Director ordered an election, which was held on October 29,1964, resulting in the ultimate certification of Local 380 as the collective bargaining agent for respondent’s employees.
A formal request to bargain was declined by respondent because of Local 380’s alleged disqualification, and the unfair labor practice proceeding followed. In this second procedural stage, respondent proffered the following additional evidence; (1) the actual granting of the additional $700,000 loan; (2) acquiescence by Local 380 in Whiting’s initiating discussions with employees about a possible reduction of the work week and elimination of some jobs, and some changes by Whiting in this direction without union protest; and (3) Whiting’s decision in 1965, for the first time, to engage in individual bargaining rather than to continue its participation in multi-employer bargaining. The Trial Examiner concluded that respondent’s affirmative defense, Local 380’s disqualification, had not been sufficiently established to rebut the prima facie case of refusal to bargain. The Board affirmed and subsequently denied respondent’s motion to reopen the record to receive allegedly new evidence of control by International’s General President over both the Fund and bargaining activities of local unions.
The Board’s Conclusions
Because we disagree with the approach taken by the Regional Director, Trial Examiner, and the Board, it is essential that the basis of their conclusions be understood. The first decision — in the representation proceeding — was made for the Board by its Regional Director. The issue occasioning this opinion was disposed of in a footnote, as follows:
“2. The Employer contended that, although the' Petitioner herein is a labor organization within the meaning of the Act, it is disqualified from participating in the instant proceeding, in view of the fact that Central States, Southeast and Southwest Areas’ Pension Fund, a joint labor-management administered fund, had recently loaned certain sums of money to a competitor of the Employer herein. The record in the instant case indicates that Petitioner is not affiliated with said Fund nor did it participate in the negotiations concerning said loan. Accordingly, it is determined that the Petitioner is a labor organization that may participate in the instant proceeding before this Board. Auburn Rubber Company, Inc., 140 N.L.R.B. 919, fn. 3.”
We do not take issue with the findings of non-affiliation and non-participation in loan negotiations, nor with the citation to Auburn Rubber Company, Inc., supra, which contains a similar footnote conclusion that another Teamsters local was not “affiliated” with the Funds. Our difficulty is that we do not think the issue of disqualification on the asserted ground of conflicts of interest can be so easily disposed of. The footnoted findings are correct answers to the wrong questions.
Similarly, when the Board affirmed the Trial Examiner’s findings and conclusions in the unfair labor practice hearing, it took substantially the same position on the conflicts of interest issue. The Trial Examiner considered that the basic arguments had already been rejected by the Board as not being supported by the evidence then before it. He concluded that the proffered new evidence of the additional loan, the talk and acts of Whiting relating to eliminating some jobs and shifting to unilateral bargaining did not add enough to overcome the General Counsel’s prima facie case. The Board, in affirming, said in a footnote:
“ * * * like the Trial Examiner, we find that the entire record, as supplemented by these additional facts, contains insufficient evidence of any definite or substantial connection between the Union and the loans by the Fund to Whiting which allegedly give rise to such a conflict of interest as would disqualify the Union from representing Respondent’s employees.”
Again, we accept the factual statement that there was insufficient evidence of a “definite or substantial connection” between the union and the loans to Whiting, if by this is meant either formal affiliation between Local 380 and the Fund or involvement by the local in the loan negotiations. But, again, this does not dispose of the issue, for it is the interrelationship of powers and temptations created by the Fund’s loans to a competitor of respondent which gives rise to the problem, without regard to the circumstances leading to the existence of the loans. The principles attaching to the concept of conflicts of interest in the fiduciary field generally, and also in the field of collective bargaining, look to the prevention and forestalling of conditions which are likely to divide loyalties. Were proof of union “betrayal” required to trigger the application of sanctions, this constructive operation of the law would be largely nullified. We therefore take issue, not with the interpretation of the testimony, nor, of course, with the facts as revealed by the documentary evidence, but rather with the test or standard applied and the application of the undisputed facts to such standard.
While we have often considered ourselves restrained by the teaching of Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we consider that a fair and sensitive resolution of the basic issue in this case involves the kind of “judgment as to the proper balance to be struck between conflicting interests” where we would not be expected or required to feel bound by administrative conclusions. N. L. R. B. v. Brown et al., 1965, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839.
Precedents and Principles
While the Board may have been correct in saying of the specific circumstances in Bausch & Lomb Optical Company, 1954, 108 N.L.R.B. 1555, 1562, that the case was “unique”, we suspect that as union pension funds continue to grow, particularly with multi-employer contributors, the question of possible conflict between investment protection and worker representation motives is likely to arise with increasing frequency.
We recognize the presence of a number of conflicting objectives which must somehow be kept in balance. There is the right of employees under Section 9(a) of the Labor Management Relations Act (29 U.S.C. 159(a)) to have bargaining representatives of their own choosing. But there is the correlative duty of complete loyalty of such representatives to their constituents, Ford Motor Co. v. Huffman et al., 1953, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048. On such a loyalty depends in large measure the “reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest”. Phelps Dodge Copper Products Corp., 1952, 101 N.L.R.B. 360, 368. On the other hand, there is the obvious right of pension funds to put their funds to good use and not to be unduly circumscribed in their investment opportunities.
At the same time we are mindful of the increasing concern over the eroding effects of direct and even attenuated conflicts of interest, particularly on the part of public officials. In the labor field, similar concern has found its way into legislation, i. e., the Welfare and Pension Plans Disclosure Act of 1958, 29 U.S.C. Sec. 301 et seq., and the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 401 et seq. Moreover, bargaining units have been said to have a quasi-legislative function, binding individuals whether consenting or not. See “Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959”, 58 Mich.L.Rev. 819 n. 4 (1960), citing Steele v. Louisville & N. R. Co. et al., 1944, 323 U.S. 192, 202, 65 S.Ct. 226, 89 L.Ed. 173. But we must also accept the cautionary advice that “Courts should take care, in borrowing fiduciary principles from other areas of the law, to avoid interfering with such union activities”. Note, 37 N.Y.U.L.Rev. 486, 504 (1962). This is particularly pertinent in a field where Congress has not seen fit to attempt specific legislation.
While there is widespread interest in union democracy, as evidenced by the “Bill of Rights” in the Labor Management Reporting and Disclosure Act, supra, Subchapter II, Sec. 411-415, there is good reason for the great national unions to retain considerable central authority to be able to root out subversion and corruption (See Cox, supra, 58 Mich.L.Rev. at 847) and to remain effective in large scale collective bargaining.
The pertinent cases in this field are few. Perhaps the leading case is Bausch & Lomb Optical Company, supra. In this case a local union sought to be recognized as the company’s bargaining agent, despite its ownership of a competing concern in the same city. There was no evidence that the union had taken any action to benefit its own company. The Trial Examiner, in ruling for the union, had observed that any abuses could be cured by invoking remedies available under laws prohibitive of acts in restraint of trade. The Board, however, reversed the ruling, pointing out the necessity for a bargaining agent to have “single-minded purpose” and “complete loyalty”, saying, 108 N.L.R.B. at 1559:
“While we agree with the Trial Examiner that no evidence of specific abuse by the Union in the bargaining relationship has been presented, we cannot ignore or disregard the innate danger involved were we to order this Respondent to bargain with a union which is also its business competitor.”
The Board referred to the mutuality of concern which sometimes leads to a wage compromise between union and management in the interest of business survival and said, “this retarding influence upon inordinate demands may well be eliminated * * *. Indeed, the success of one [company] could well mean the failure of the other.” 108 N.L.R.B. at 1560. It went on to say that it was not fair to put upon the company the burden of trying to disentangle employee from investment motivation, for the company “would be effectively deprived of its right to refuse even to discuss excessive demands designed to force it out of business.” 108 N.L.R.B. at 1561. It observed also that the union, representing 7 of 11 wholesale optical firms and the respondent, had considerable control over the labor market.
It concluded by saying:
“We do not believe it is incumbent upon the Board to hold, in a situation such as involved here, which possesses latent dangers, that merely because the hazards which can be anticipated have not yet been realized, the Respondent-employer is nonetheless under a statutory duty to bargain. We do not mean to imply that given the opportunity the Union would inevitably take advantage of its position in the manner before indicated. It is enough for us that it could and that the temptation is too great.” 108 N.L.R.B. at 1562.
To this must be added Chicago Typographical Union No. 16 et al, 1940, 86 N.L.R.B. 1041. Here the Board recognized almost twenty years ago that “the essential indicia of complete local autonomy” are “freedom in the Local to disregard the ‘advice’ of the International and to conclude negotiations independently.” The Board went on to point out the specific obligations of the local union to submit contract proposals and negotiated contracts to the International for approval, or risk the withholding of strike benefit funds. Although this procedure was not always followed, the Board said, “All we need decide and do decide here is what powers the membership contract vests in the organization.” 86 N.L.R.B. at 1047 n. 15.
Bausch & Lomb was admittedly a clear case of immediate, direct competition. This is a case of contingent competition. But we distill the following points from this and other cases: (1) it is the innate danger to be guarded against; (2) the existence of this danger does not require proof of abuse of trust, so long as there is sufficient power and temptation to commit such abuse; (3) such a danger, if proximate enough, without evidence of present abuse, can poison the collective bargaining process by subjecting every issue to the questioning of ulterior motives; (4) where such proximate danger exists, it is not exorcised by the mere existence of other legal remedies such as those created by anti-trust legislation; and (5) the keystone freedom required on the part of a local union seeking to become an exclusive collective bargaining agent is the freedom to conclude such bargaining negotiations free of the suspicion that it is motivated by any purpose other than its loyalty to the employees it represents.
In seeking to measure the proximateness of the hazard, we see little utility in asking the general question whether or not the local union is “autonomous”. Few locals would have complete autonomy. We can conceive of a local with a large area of autonomy which may nevertheless be required to subordinate or share its authority with its international as to a key function of the bargaining process. It is possible, on the other hand, to conceive of a local which is subordinate in many respects to its parent international union and yet free of any meaningful restriction in its power to set an independent course in its collective bargaining activities. The cases, therefore, which hold that service on a local does not constitute service on an international, e. g., Morgan Drive Away, Inc. v. International Brotherhood of Teamsters et al., 7 Cir., 1959, 268 F.2d 871, cert. denied, 361 U.S. 896, 80 S.Ct. 199, 4 L.Ed.2d 152 (but cf. International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 614 n. 4, cert. denied, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011), or that an international is not responsible for wrongful acts of its locals, e. g., International Brotherhood of Electrical Workers, Local 5 (Franklin Electric Construction Co.), 1958, 121 N.L.R.B. 143, do not necessarily establish the Criteria for resolving a conflicts of interest case. What is required is a selective scrutiny of those key powers which a local bargaining agent must be able to exercise with undivided loyalty if it is to engender confidence at the bargaining table.
Coming to the facts of this case, and focussing on what we feel to be pertinent, Local 380 is subject to the following exercise of' authority by International: (1) to arbitrate a controversy if the General President submits the matter to the General Executive Board and the Board feels that the local should arbitrate (International Constitution, Art. VI, Sec. 3); (2) to submit its management to a trustee appointed by the General President, if the latter believes that the local union is acting to “jeopardize the interests of the International Union, or its subordinate bodies” or if he feels such action is necessary to assure the performance of “duties of a bargaining representative” (Art. VI, Sec. 5(a)); (3) to desist from strike if the General President disapproves (Art. XII, Sec. 1(c)); and (4) to submit proposed collective bargaining contracts to the Joint Council and Area Conference and, if such contract provides for a lower standard of working conditions and wages than those prevailing in the area, to await the approval of the General Executive Board of International (Art. XII, Sec. 11(a) and (d)).
Area Conferences, which have the power to approve proposed collective bargaining agreements and also to name the union trustees on the Fund’s Board are “at all times subject to the unqualified supervision, direction and control of the General President * * * ” (Art. XVI, Sec. 1).
Translating these powers into practical terms, if Local 380 were willing to accept less than the average wages in order to assist respondent to reenter the retail milk delivery market, its ability to so agree is conditioned on acceptance by the Area Conference, which is wholly under the “unqualified supervision, direction, and control of the General President”, and the General Executive Board. But the General President has a fiduciary responsibility to the Fund to see Whiting, a competitor, do as well as possible. On the other hand, if Local 380 wished to ask for substantially higher than average area wages, and were willing to strike for them, the General President faces the possible chain effect of wage escalation on Whiting and might well feel conscience-bound to cause the Area Conference to veto such strike and/or advise the General Executive Board to order arbitration. If Local 380 were zealously to pursue policies which began to hurt Whiting, the General President might even come to the conclusion that the interests of the International (i. e., nearly $5 million of the Fund’s money) were in jeopardy, and order a trusteeship. Alternatively, he or the General Executive Board might feel called upon to bring pressures short of these ultimate sanctions.
These possibilities, the extent to which they constitute “innate dangers”, their effect on the bargaining process, the feasibility of devising reasonable proscriptions and safeguards — these we think ought to have been the concern of the Board, not whether the local union was “affiliated” with the Fund or had participated in the negotiations leading to the Fund’s loan.
Were we to affirm the Board’s petition in this case, we would in effect be giving carte blanche to unthinking debt financing by unions in enterprises with which they had bargaining relationships. Some of these chickens would come home to roost in eases of default and operation of the debtor by the union or its fund. But the more difficult problem would be coping with the problems of collective bargaining while lender and borrower were bending every effort to avoid default.
But were we simply to remand this case to the Board with instructions to dismiss the underlying representation petition, as respondent urges, we would be setting the stage for a wholesale reshuffling of collective bargaining relationships in the milk industry in the Boston area and perhaps beyond, without giving the Board or the International opportunity to try to come to terms with a problem which was not foreseen when a loan was made in undoubtedly good faith to an enterprise in need.
While we have not hesitated to differ with the Board on what we believe to be an issue of judgment involving basic policy where the underlying facts are undisputed and largely documentary, we recognize that, given basic guidelines, the expertise of the Board is necessary to arrive at a workable solution. One thing is sure. What might have been a unique case twelve years ago will be a commonplace of tomorrow if suitable guidelines and safeguards are not devised.
We therefore remand this, matter to the Board for reconsideration in the light of what we have said, in order that it may assess the potential, not merely the actuality, of conflict of interest and frame an order which, hopefully, will balance the legitimate interests of the Fund, respondent, International, Local 380, and respondent’s employees.
. Intervenor in this proceeding and hereafter referred to as “Local 380”. The International union will be referred to as “International”.
. The fund, hereafter called “the Fund”, is the Central States, Southeast & Southwest Areas Pension Fund. This is one of several large pension funds, to which employers and employer associations contribute for the benefit of their employees who are members of International and affiliated union organizations, The Fund is administered by 16 trustees, 8 chosen by various employer groups, and 8 by the four subscribing Area Conferences of International, and their local unions. (These are the Central States Conference of Teamsters, the Central States Drivers Council, the Southern Conference of Teamsters, and the Southern States Drivers Council.) All trustees serve at the pleasure of their appointing authority. In the event of deadlock, provision is made for an agreed upon or court appointed “neutral party”. As of January 31, 1963 the Fund’s assets were $213,389,-484.68.
. The larger of these being Hood’s, Whiting, United Farmers, and Woodland, with a number of smaller dealers and independents.
. An extensive resume of International’s constitution, before 1961, is contained in International Brotherhood of Teamsters et al. v. United States, 4 Cir., 1960, 275 F.2d 610, 612-614, cert. denied, 1960, 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011. Significant changes were enacted at International’s 1961 convention. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605, contains a further summary of key provisions.
Pertinent sections will be discussed later in the opinion.
. This evidence is in the form of transcripts of Fund meetings and other records which are referred to and drawn upon in a recently published book, James, “Hoffa and the Teamsters — A Study in Union Power”, 1965. The General Oounsel’s opposition to the motion was based on the fact that (1) the underlying records used in the book were not newly discovered, since they were as available to respondent as to the authors; (2) the documents refer to a period of time antedating the Whiting loans; and (3) they do not bear on “the sole issue in this case, i. e., whether Local 380 participated in the negotiations for the aforesaid loan or has any other connection with that transaction.” While, as will be obvious, we feel that “the sole issue” is quite a different one, we do not find reversible error in the Board’s denial of the motion as made. Our reading of the book does not add to our understanding of the basic powers, duties, and temptations, which, wholly apart from a past course of conduct, in our view create the conflict of interest problem. Moreover, the motion raised the specter of masses of documentation much of which would be remote in time and irrelevant to the issue. We add, however, that in reconsidering this matter the Board would do well to ascertain the magnitude of the problem described in the sections entitled “Truckers, Trustees, and Las Vegas Resorts”, and “The Union’s Conflict of Interest”, James, op. cit. supra at 271-273, 292-294.
. The Auburn case illuminates the potential conflict of interest between union investment and union representation. Here the Fund had bought municipal bonds issued by the city of Deming, New Mexico, to build a plant and attract an Indiana rubber company. The Teamsters sought to become the bargaining agent in lieu of the United Rubber Workers, AFL~ CIO, which had represented the company’s employees. The letter asserted that the reason lay in assuring a bargaining policy which would not jeopardize the Fund’s investment. This claim was deemed to have been asserted too late, i. e., after the representation election. The Regional Director, however, went on to say that there appeared to be no conflict. We are not impressed by the extent of analysis given the problem. See 46 Note, Minn.L.Rev. 573, at 582 n. 30 for a critical comment.
. Not cited in any brief submitted to us was the provocative Note, Union Investments in Business: A Source of Union Conflicts of Interest, 46 Minn.L.Rev. 573 (1962), which deals with the problems of conflict of interest in an era when mounting union reserves and pension funds present widespread opportunities for capital investment.
. The most concrete example of this concern is the recent comprehensive revision of laws relating to conflicts of interests affecting federal officials. Public Law 87-849, 76 Stat. 1119 (1962), 18 U.S.C. §§ 201-218 (1963). This was in part stimulated by a report “Conflict of Interest and Federal Service 3 (1960)” by the Special Committee on the Federal Conflict of Interest Laws, of the Association of the Bar of the City of New York. See Petrowitz, “Conflict of Interest in Federal Procurement”, 29 Law and Contemporary Problems 196 (1964).
. A 1959 study, for the Fund for the Republic, by Leo Bromwich, entitled “Union Constitutions”, observes, p. 18: “ * * * the uniformly vast powers granted to the chief executive in the American labor movement lead to the reflection that such crystallization of power is called forth by the union’s very existence — the natural response, perhaps, of a sprawling organization to the compelling pressures of industrial life.”
. Other Board cases bearing on this issue concern unions unsuccessfully seeking to be bargaining representatives of affiliated unions. In each case the Board prohibited the relationship because of the difficulty in maintaining a single-minded purpose. General Teamsters, Local 249, 1962, 139 N.L.R.B. 605; Seafarers International Union, 1962, 138 N.L.R.B. 1142; Oregon Teamsters Security Plan Office, 1957, 119 N.L.R.B. 207.
. At the opposite end of the spectrum from Bausch & Lomb are such cases as those where the union investment was in a cooperative store restricted to members and posed no threat to a store with 2300 employees as in Lord & Taylor, 1965, 150 N.L.R.B. 81, and where union members as individuals took on dual roles when they participated in stock purchase plans, as in Richfield Oil Corp. v. N. L. R. B., 1956, 97 U.S.App.D.C. 383, 231 F.2d 717, 58 A.L.R.2d 833, cert. denied, 351 U.S. 909, 76 S.Ct. 695, 100 L.Ed. 1444.
. Cf. United States v. Mississippi Valley Generating Co., 1960, 364 U.S. 520, 549, 550 n. 14, 81 S.Ct. 294, 5 L.Ed.2d 268.
. “The anti-trust laws * * * seem to provide protection only to competing employers; they provide no remedy to the employees who are represented by a union whieh bargains in bad faith because of conflicting interests.” Note, 46 Minn.L.Rev. at 598.
. See, for example, the discussion in Note, 46 Minn.L.Rev. at 583-586.
. We note that Canon V of the AFL-CIO Code of Ethical Practices 39 (1958) states: “Neither the AFL-CIO nor any national or international union affiliated with the AFL-CIO should invest in or make loans to any business enterprise with which it bargains collectively.” (We also note that there has apparently been no attempt to enforce this provision. Note, 46 Minn.L.Rev. 573, 589). In so noting we do not mean to imply that what has been undertaken voluntarily by one labor organization should by court or administrative fiat be imposed involuntarily on another, particularly where we are concerned with a union-management administered pension fund rather than an international union per se. Our purpose rather is to underscore the need for discriminating analysis in weighing hazards and devising fair and feasible means for dealing with them.
. For example, we note that Article XXV, Sec. 2 of International’s Constitution states:
“If any provision of this Constitution shall be declared invalid or inoperative, by any competent authority of the executive, judicial or administrative branch of the federal or state government, the General Executive Board shall have the authority to suspend the operation of such provision during the period of its invalidity and to substitute in its place and stead a provision which will meet the objections to its validity and which will be in accord with the intent and purpose of the invalid provisions * *
As for the Board’s powers, “It likewise has discretion to place appropriate limitations on the choice of bargaining representatives should it find that public or statutory policies so dictate.” N.L.R.B. v. Jones & Laughlin Steel Corp., 1947, 331 U.S. 416, 422, 67 S.Ct. 1274, 1278, 91 L.Ed. 1575.
. The language of Judge Washington in American Broadcasting Co. v. Federal Communications Commission, 1951, 89 U.S.App.D.C. 298, 191 F.2d 492, 501, may not be inappropriate here: “There would appear to be many possibilities for action in this case. The Commission has never made a determination based upon a thorough study of those possibilities. We think it is incumbent upon the Commission so to do.”
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_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.
Howard T. FISHER, Howard T. Fisher & Associates, Inc., an Illinois Corporation, and Thomas H. Fisher, Plaintiffs-Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, Defendant-Appellee.
No. 14214.
United States Court of Appeals Seventh Circuit.
Feb. 27, 1964.
Rehearing Denied April 20, 1964.
Thomas Hart Fisher, Norman Crawford, Chicago, Ill., for plaintiffs-appellants.
Francis B. Libbe, David Jacker, John W. Kearns, Jr., Chicago, Ill., for defendant-appellee, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel.
Before DUFFY, CASTLE, and KILEY, Circuit Judges.
KILEY, Circuit Judge.
The district court dismissed this diversity suit because the “matter in controversy” did not exceed $10,000.00. Plaintiffs have appealed.
The decisive issue is: At what time did Hartford’s obligation to defend its insureds in suits against them arise. The district court decided the obligation did not arise until after the suits were filed, thereby limiting insured’s right to attorney’s fees to services rendered since that time. Attorney Thomas Hart Fisher’s claim for fees and expenses was reduced, accordingly, below the jurisdictional amount. We agree with the decision.
Hartford’s policy covered construction work and bound Hartford to pay any sums for which the insureds would become “legally obligated to pay” because of injuries; and to “defend any suit” against insureds “even if * * * groundless, false or fraudulent.”
An accident occurred on the property, covered by the policies, on August 18, 1957, injuring several persons. Two suits arising from the accident were filed against the insureds. Hartford did not tender an unconditional defense, but reserved its right to withdraw its defense and to deny coverage under its policy. It later brought a declaratory judgment suit with respect to its obligations under the policy. It settled both personal injury suits before trial, and the declaratory judgment action was “dismissed” after trial on the merits.
Plaintiffs then brought this damage suit for alleged breach of the defense clause by Hartford, and claimed expenses and attorney’s fees for services rendered by Attorney Fisher in representing them in the three suits.
The issue raised by the pleadings and defendant’s motion to dismiss is whether the court had jurisdiction over the subject matter because of lack of jurisdictional amount.
The statute conferring jurisdiction calls for strict construction and when plaintiffs’ allegation was challenged by Hartford they had the burden of supporting the allegation by competent proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951, (1942). And if, on the record made before it, the district court should have been convinced “to a legal certainty” the claim is for less than the jurisdictional amount, the court did not err. Jones v. Drewery’s, Ltd., 149 F.2d 250, 251 (7th Cir.1945), Berger v. Austin, Nichols & Co., 170 F.2d 330, 332 (7th Cir.1948), Columbia Pictures Corp. v. Grengs, 257 F.2d 45, 47 (7th Cir. 1958).
Plaintiffs refer us to the Annotation at 43 A.L.R.2d 694 for Illinois cases to support the “well established * * * law” that the district court erred in excluding from consideration fees of Attorney Fisher for services rendered prior to commencement of suit. The reference is unavailing. None of the cases support the theory, directly or indirectly. On the contrary, if any implication for the case at hand can be seen in the Illinois cases referred to it is that the court ruled properly.
We are not persuaded that the district court erred in applying the rule that it did, in excluding from consideration claims of Attorney Fisher for services rendered before the filing of suit. It follows, we think, that the court’s dismissal for want of jurisdiction was not erroneous.
There is no merit in the argument that because the face amount of Hartford’s policy exceeded $10,000.00, that amount was in controversy in this suit, brought for attorney’s expenses and fees for alleged breach of the defense clause. Cases such as Hardware Mut. Cas. Co. v. Schantz, 178 F.2d 779 (5th Cir.1949), where the dispute was about coverage, are not pertinent.
Finally, we see no merit in plaintiffs’ contention that they were erroneously denied the right to amend their complaint. Plaintiffs’ amendment sought to increase the “expenses incurred” by Attorney Fisher in the “three actions” from $78.09 to $598.66, and thereby meet the jurisdictional requisite. Plaintiffs did not seek to amend until after the court had filed its opinion “dismissing plaintiffs’ complaint,” and did not make any showing, outside of the bare increase in figures, to substantiate the increase. Since defendant had filed its answer prior to this attempted amendment, it was discretionary with the district judge whether or not to grant plaintiffs leave to amend. Rule 15(a), Fed.R.Civ.P. In view of the district court’s observation in its opinion dismissing the complaint that plaintiffs used “unorthodox means” to show jurisdiction, there is a “justifying reason appearing for the denial” of the leave to amend, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), and nothing has been shown to the contrary to this court.
We have examined plaintiffs’ other contentions and find no merit to them.
Affirmed.
. 28 U.S.C. § 1332.
. Howard T. Fisher and Howard T. Fisher & Associates, Inc.
. While this cause was pending before this court, a third personal injury action was filed against insureds. We have taken judicial notice of this suit.
. Plaintiffs ask for $11,048.09 — $10,970.00 was for professional services rendered by Attorney Fisher, and $78.09 was for “expenses incurred.”
Defendant asserted that the time spent by Attorney Fisher between the date of the accident and the date the first personal injury lawsuit was filed (34% hours) was not a proper element of damages, and that accordingly the damages asked should be reduced by $1,370.00— to $9,678.09.
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_respondent | 003 | 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.
WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK, INC., et al. v. VILLAGE OF STRATTON et al.
No. 00-1737.
Argued February 26, 2002
Decided June 17, 2002
Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Souter and Ginsburg, JJ., joined, post, p. 169. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 171. Rehnquist, C. J., filed a dissenting opinion, post, p. 172.
Paul D. Polidoro argued the cause for petitioners. With him on the briefs were Philip Brumley, Richard D. Moake, and Donald T. Ridley.
Abraham Cantor argued the cause and filed a brief for respondents.
David M. Gormley, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae in support of respondents. With him on the brief were Betty D. Montgomery, Attorney General of Ohio, Elise W. Porter and Kirk A. Lindsey, Assistant Solicitors, and the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Steve Carter of Indiana, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J Joseph Curran, Jr., of Maryland, Thomas Reilly of Massachusetts, Frankie Sue Del Papa of Nevada, W. A. Drew Edmondson of Oklahoma, and Hoke MacMillan of Wyoming.
Briefs of amici curiae urging reversal were filed for Commonwealth of the Northern Mariana Islands by Herbert D. Soil, Attorney General, David, Collins, and Karen M. Klaver; for the Center for Individual Freedom by Eric S. Jaffe; for the Church of Jesus Christ of Latter-day Saints by Von G. Keetch; for the Electronic Privacy Information Center et al. by Marc Rotenberg, Steven R. Shapiro, and Raymond Vasvari; and for RealCampaignReform.org, Inc., et al. by William J. Olson, John S. Miles, and Herbert W. Titus.
Briefs of amici curiae urging affirmance were filed for the Ohio Municipal League by Barry M. Byron and John E. Gotherman; and for the International Municipal Lawyers Association et al. by Richard Ruda and James I. Crowley.
Briefs of amici curiae were filed for the Brennan Center for Justice by Burt Neuborne, Deborah Goldberg, and Richard L. Hasen; and for Independent Baptist Churches of America by Thomas TV King III.
Justice Stevens
delivered the opinion of the Court.
Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills.
I
Petitioner Watchtower Bible and Tract Society of New York, Inc., coordinates the preaching activities of Jehovah’s Witnesses throughout the United States and publishes Bibles and religious periodicals that are widely distributed. Petitioner Wellsville, Ohio, Congregation of Jehovah’s Witnesses, Inc., supervises the activities of approximately 59 members in a part of Ohio that includes the Village of Strat-ton (Village). Petitioners offer religious literature without cost to anyone interested in reading it. They allege that they do not solicit contributions or orders for the sale of merchandise or services, but they do accept donations.
Petitioners brought this action against the Village and its mayor in the United States District Court for the Southern District of Ohio, seeking an injunction against the enforcement of several sections of Ordinance No. 1998-5 regulating uninvited peddling and solicitation on private property in the Village. Petitioners’ complaint alleged that the ordinance violated several constitutional rights, including the free exercise of religion, free speech, and the freedom of the press. App. 10a-44a. The District Court conducted a bench trial at which evidence of the administration of the ordinance and its effect on petitioners was introduced.
Section 116.01 prohibits “canvassers” and others from “going in and upon” private residential property for the purpose of promoting any “cause” without first having obtained a permit pursuant to § 116.03. That section provides that any canvasser who intends to go on private property to promote a cause must obtain a “Solicitation Permit” from the office of the mayor; there is no charge for the permit, and apparently one is issued routinely after an applicant fills out a fairly detailed “Solicitor’s Registration Form.” The canvasser is then authorized to go upon premises that he listed on the registration form, but he must carry the permit upon his person and exhibit it whenever requested to do so by a police officer or by a resident. The ordinance sets forth grounds for the denial or revocation of a permit, but the record before us does not show that any application has been denied or that any permit has been revoked. Petitioners did not apply for a permit.
A section of the ordinance that petitioners do not challenge establishes a procedure by which a resident may prohibit solicitation even by holders of permits. If the resident files a “No Solicitation Registration Form” with the mayor, and also posts a “No Solicitation” sign on his property, no uninvited canvassers may enter his property, unless they are specifically authorized to do so in the “No Solicitation Registration Form” itself. Only 32 of the Village’s 278 residents filed such forms. Each of the forms in the record contains a list of 19 suggested exceptions; on one form, a resident checked 17 exceptions, thereby excluding only “Jehovah’s Witnesses” and “Political Candidates” from the list of invited canvassers. Although Jehovah’s Witnesses do not consider themselves to be “solicitors” because they make no charge for their literature or their teaching, leaders of the church testified at trial that they would honor “no solicitation” signs in the Village. They also explained at trial that they did not apply for a permit because they derive their authority to preach from Scripture. “For us to seek a permit from a municipality to preach we feel would almost be an insult to God.” App. 321a.
Petitioners introduced some evidence that the ordinance was the product of the mayor’s hostility to their ministry, but the District Court credited the mayor’s testimony that it had been designed to protect the privacy rights of the Village residents, specifically to protect them “from ‘Aim flam’ con artists who prey on small town populations.” 61 F. Supp. 2d 734, 736 (SD Ohio 1999). Nevertheless, the court concluded that the terms of the ordinance applied to the activities of petitioners as well as to “business or political canvassers,” id., at 737, 738.
The District Court upheld most provisions of the ordinance as valid, content-neutral regulations that did not infringe on petitioners’ First Amendment rights. The court did, however, require the Village to accept narrowing constructions of three provisions. First, the court viewed the requirement in § 116.03(b)(5) that the applicant must list the specific address of each residence to be visited as potentially invalid, but cured by the Village’s agreement to attach to the form a list of willing residents. Id., at 737. Second, it held that petitioners could comply with § 116.03(b)(6) by merely stating their purpose as “the Jehovah’s Witness ministry.” Id., at 738. And third, it held that § 116.05, which limited canvassing to the hours before 5 p.m., was invalid on its face and should be replaced with a provision referring to “reasonable hours of the day.” Id., at 739. As so modified, the court held the ordinance constitutionally valid as applied to petitioners and dismissed the case.
The Court of Appeals for the Sixth Circuit affirmed. 240 F. 3d 553 (2001). It held that the ordinance was “content neutral and of general applicability and therefore subject to intermediate scrutiny.” Id., at 560. It rejected petitioners’ reliance on the discussion of laws affecting both the free exercise of religion and free speech in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), because that “language was dicta and therefore not binding.” 240 F. 3d, at 561. It also rejected petitioners’ argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that we recognized in McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995), reasoning that “the very act of going door-to-door requires the canvassers to reveal a portion of their identities.” 240 F. 3d, at 563. The Court of Appeals concluded that the interests promoted by the Village — “protecting its residents from fraud and undue annoyance” — as well as the harm that it seeks to prevent — “criminals posing as canvassers in order to defraud its residents” — though “by no means overwhelming,” were sufficient to justify the regulation. Id., at 565-566. The court distinguished earlier cases protecting the Jehovah’s Witnesses ministry because those cases either involved a flat prohibition on the dissemination of ideas, e. g., Martin v. City of Struthers, 319 U. S. 141 (1943), or an ordinance that left the issuance of a permit to the discretion of a municipal officer, see, e. g., Cantwell v. Connecticut, 310 U. S. 296, 302 (1940).
In dissent, Judge Gilman expressed the opinion that by subjecting noncommercial solicitation to the permit requirements, the ordinance significantly restricted a substantial quantity of speech unrelated to the Village’s interest in eliminating fraud and unwanted annoyance. In his view, the Village “failed to demonstrate either the reality of the harm or the efficacy of the restriction.” 240 F. 3d, at 572.
We granted certiorari to decide the following question: “Does a municipal ordinance that requires one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one’s name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse?” 534 U. S. 971 (2001); Pet. for Cert, i.
II
For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering. It is more than historical accident that most of these cases involved First Amendment challenges brought by Jehovah’s Witnesses, because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania, 319 U. S. 105, 108 (1943), the Jehovah’s Witnesses “claim to follow the example of Paul, teaching ‘publickly, and from house to house.’ Acts 20:20. They take literally the mandate of the Scriptures, ‘Go ye into all the world, and preach the gospel to every creature.’ Mark 16:15. In doing so they believe that they are obeying a commandment of God.” Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize is seriously diminished by regulations that burden their efforts to canvass door-to-door.
Although our past cases involving Jehovah’s Witnesses, most of which were decided shortly before and during World War II, do not directly control the question we confront today, they provide both a historical and analytical backdrop for consideration of petitioners’ First Amendment claim that the breadth of the Village’s ordinance offends the First Amendment. Those cases involved petty offenses that raised constitutional questions of the most serious magnitude — questions that implicated the free exercise of religion, the freedom of speech, and the freedom of the press. From these decisions, several themes emerge that guide our consideration of the ordinance at issue here.
First, the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania, the Court noted that “hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of printing presses. It has been a potent force in various religious movements down through the years.... This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press.” Id., at 108-109.
In addition, the cases discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington), 308 U. S. 147 (1939), the petitioner was a Jehovah’s Witness who had been convicted of canvassing without a permit based on evidence that she had gone from house to house offering to leave books or booklets. Writing for the Court, Justice Roberts stated that "pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.” Id., at 164 (emphasis added).
Despite the emphasis on the important role that door-to-door canvassing and pamphleteering has played in our constitutional tradition of free and open discussion, these early cases also recognized the interests a town may have in some form of regulation, particularly when the solicitation of money is involved. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that an ordinance requiring Jehovah’s Witnesses to obtain a license before soliciting door to door was invalid because the issuance of the license depended on the exercise of discretion by a city official. Our opinion recognized that “a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent.” Id., at 306. Similarly, in Martin v. City of Struthers, the Court recognized crime prevention as a legitimate interest served by these ordinances and noted that “burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later.” 319 U. S., at 144. Despite recognition of these interests as legitimate, our precedent is clear that there must be a balance between these interests and the effect of the regulations on First Amendment rights. We “must ‘be astute to examine the effect of the challenged legislation’ and must ‘weigh the circumstances and... appraise the substantiality of the reasons advanced in support of the regulation.’” Ibid, (quoting Schneider, 308 U. S., at 161).
Finally, the cases demonstrate that efforts of the Jehovah’s Witnesses to resist speech regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely extensively upon this method of communication, the Court summarized that “[d]oor to door distribution of circulars is essential to the poorly financed causes of little people.” 319 U. S., at 144-146.
That the Jehovah’s Witnesses are not the only “little people” who face the risk of silencing by regulations like the Village’s is exemplified by our cases involving nonreligious speech. See, e. g., Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Thomas v. Collins, 323 U. S. 516 (1945). In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah’s Witnesses cases discussed above, the Court observed:
“As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly....
“If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.” Id., at 539-540.
Although these World War II-era cases provide guidance for our consideration of the question presented, they do not answer one preliminary issue that the parties adamantly dispute. That is, what standard of review ought we use in assessing the constitutionality of this ordinance. We find it unnecessary, however, to resolve that dispute because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it.
III
The Village argues that three interests are served by its ordinance: the prevention of fraud, the prevention of crime, and the protection of residents’ privacy. We have no difficulty concluding, in light of our precedent, that these are important interests that the Village may seek to safeguard through some form of regulation of solicitation activity. We must also look, however, to the amount of speech covered by the ordinance and whether there is an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve.
The text of the Village’s ordinance prohibits “canvassers” from going on private property for the purpose of explaining or promoting any “cause,” unless they receive a permit and the residents visited have not opted for a “no solicitation” sign. Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village’s interest in protecting the privacy of its residents and preventing fraud. Yet, even though the Village has explained that the ordinance was adopted to serve those interests, it has never contended that it should be so narrowly interpreted. To the contrary, the Village’s administration of its ordinance unquestionably demonstrates that the provisions apply to a significant number of noncommercial “canvassers” promoting a wide variety of “causes.” Indeed, on the “No Solicitation Forms” provided to the residents, the canvassers include “Camp Fire Girls,” “Jehovah’s Witnesses,” “Political Candidates,” “Trick or Treaters during Halloween Season,” and “Persons Affiliated with Stratton Church.” The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to “residents casually soliciting the votes of neighbors,” or ringing doorbells to enlist support for employing a more efficient garbage collector.
The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the may- or’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement.
First, as our cases involving distribution of unsigned handbills demonstrate, there are a significant number of persons who support causes anonymously. “The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” McIntyre v. Ohio Elections Comm’n, 514 U. S., at 341-342. The requirement that a canvasser must be identified in a permit application filed in the mayor’s office and available for public inspection necessarily results in a surrender of that anonymity. Although it is true, as the Court of Appeals suggested, see 240 F. 3d, at 563, that persons who are known to the resident reveal their allegiance to a group or cause when they present themselves at the front door to advocate an issue or to deliver a handbill, the Court of Appeals erred in concluding that the ordinance does not implicate anonymity interests. The Sixth Circuit’s reasoning is undermined by our decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182 (1999). The badge requirement that we invalidated in Buckley applied to petition cir-culators seeking signatures in face-to-face interactions. The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators’ interest in maintaining their anonymity. In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes. Such preclusion may well be justified in some situations — for example, by the special state interest in protecting the integrity of a ballot-initiative process, see ibid., or by the interest in preventing fraudulent commercial transactions. The Village ordinance, however, sweeps more broadly, covering unpopular causes unrelated to commercial transactions or to any special interest in protecting the electoral process.
Second, requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.
Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance. A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit. Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor’s permission. In this respect, the regulation is analogous to the circulation licensing tax the Court invalidated in Grosjean v. American Press Co., 297 U. S. 233 (1936). In Grosjean, while discussing the history of the Free Press Clause of the First Amendment,
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_appbus | 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 "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Vincent REED, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 92-1736.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 18, 1992.
Decided Feb. 1, 1993.
As Corrected Feb. 1, 1993.
Martin S. Agran (argued), Agran & Agran, Chicago, IL, for petitioner-appellant.
Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., John J. Tharp, Jr. (argued), Chicago, IL, for respondent-appellee.
Before BAUER, Chief Judge, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge.
Vincent Reed, the defendant in a criminal prosecution under 21 U.S.C. § 841(a)(1), appeals a district court order denying his motion to vacate the sentence under 28 U.S.C. § 2255. On appeal, Mr. Reed raises three issues that he asserts warrant reversal: (1) whether the prosecutor’s decision to prosecute the defendant under federal rather than state law deprived the defendant of due process of law; (2) whether the statute under which the defendant was sentenced was unconstitutionally vague; and, (3) whether the district court should have applied the rule of lenity in interpreting the sentencing statute. Because we conclude that appellant has not demonstrated cause and prejudice for his procedural default, we do not reach these issues and affirm.
I. BACKGROUND
Detectives for the Chicago Police Department arrested Mr. Reed at Midway Airport on August 1, 1988, after a search of his luggage produced approximately two kilograms of phencyclidine (“PCP”). He was charged with possession with intent to distribute 1,985 grams of PCP, in violation of 21 U.S.C. § 841(a)(1). Before trial, Mr. Reed sought to suppress the PCP seized by the police. This motion was denied by the district court. After a bench trial, the district court found Mr. Reed guilty of the charge and, on March 13, 1989, sentenced him to ten years in prison under 21 U.S.C. § 841(b)(1)(A), the minimum term of imprisonment permissible under the statute. The district court did not fine him because it found him to be impecunious.
Mr. Reed appealed his conviction to this court. He argued that the district court erroneously denied his motion to suppress the PCP as the product of an illegal seizure. We affirmed his conviction on January 29, 1990. United States v. Reed, No. 89-1607, order at 1, 1990 WL 8025 (7th Cir. Jan. 29, 1990) (unpublished order). On May 16, 1991, Mr. Reed filed a motion under 28 U.S.C. § 2255 to vacate the sentence. The district court denied the motion on January 27, 1992. He then appealed that denial to this court on March 27, 1992.
II. ANALYSIS
Before this court can address the substantive issues which Mr. Reed presents, we must determine whether he has established cause for his failure to raise the issues in his § 2255 motion on direct appeal and actual prejudice from the alleged errors. In the present case, Mr. Reed does not attempt to establish cause and prejudice in his appellate brief. He asserts that it is unnecessary to do so because the district court held that he “did not deliberately bypass the appellate process.” United States v. Reed, No. 91 C 3013, order at 2 (N.D.Ill. Jan. 27, 1992) (unpublished order). The Supreme Court of the United States, however, has rejected the “deliberate bypass” standard in favor of the “cause and prejudice” analysis. United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); see also Coleman v. Thompson, — U.S. -, -, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991); Barksdale v. Lane, 957 F.2d 379, 385 (7th Cir.1992). Consequently, we must require a demonstration of cause and prejudice before permitting federal habeas review.
In his reply brief, Mr. Reed, for the first time, presents a cause and prejudice analysis. He addresses the issue of cause by stating that “[i]n the case at bar, the cases upon which defendant relies were not available at the time his original appeal was filed and therefore the legal basis for the claim was not reasonably available to his counsel.” Reply Brief for Appellant at 2. Relying upon Reed v. Ross, 468 U.S. 1, 14-16, 104 S.Ct. 2901, 2909-10, 82 L.Ed.2d 1 (1984), Mr. Reed submits that the novelty of the claims raised in his § 2255 motion justifies his failure to raise the claims on direct appeal. In Reed v. Ross, the Supreme Court held that “the failure of counsel to raise a constitutional issue reasonably unknown to him [at the time of direct appeal] is one situation in which the requirement [of cause] is met.” Id. at 14, 104 S.Ct. at 2909. Mr. Reed’s situation, however, differs from the one contemplated in Reed v. Ross in three significant ways.
Mr. Reed argues that the Government, by electing to prosecute him under federal law rather than state law, violated his right to due process of law. He relies upon four recent cases to support his assertion. These cases, however, do not stand for the proposition that federal prosecutors may not charge a defendant under federal law when state law provides a lesser penalty. They only address the issue of the proper scope of prosecutorial discretion within the federal forum. Indeed, under principles of dual sovereignty, both the state and the federal government may sentence a defendant for actions criminal under both state and federal law. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); Abbate v. United States, 359 U.S. 187, 194-95, 79 S.Ct. 666, 670-71, 3 L.Ed.2d 729 (1959). Consequently, Mr. Reed’s assertion of cause based on the recent availability of case law is irrelevant and unpersuasive. The cases upon which he relies provide no basis for collateral attack and thus do not provide cause.
Mr. Reed also argues that he was sentenced under an unconstitutionally vague sentencing statute, 21 U.S.C. § 841(b)(1)(A). He claims that the statute’s language which states “[i]n the case of a violation ... involving ... 100 grams or more of phencyclidine (PCP) ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life ... a fine ... or both,” does not provide “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Brief of Appellant at 7 (citing United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954)). Mr. Reed argues that a reasonable person could interpret the statute as giving the district court the discretion to sentence a defendant to either imprisonment or a fine. This ambiguity, he continues, “violates the Due Process notice requirement.” Brief of Appellant at 8. In support of this proposition, Mr. Reed cites several cases, including United States v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir.1989). Colon-Ortiz, however, was decided on January 19, 1989, two months before he was sentenced. Consequently, Mr. Reed should have “realized that there was a reasonable basis in the existing law for making this claim.” Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217, 222 (7th Cir.1987). More importantly, cases standing for the legal proposition Mr. Reed now asserts — that the statute does not provide adequate notice of prohibited conduct — are not new to our law. See United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203-04, 60 L.Ed.2d 755 (1979) (“Vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.”); see also United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954) (a statute is unconstitutionally vague if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden”). Thus, Mr. Reed cannot establish cause for his failure to raise this claim of statutory vagueness on direct appeal.
Finally, Mr. Reed maintains that the district court should have applied the rule of lenity to interpret the allegedly unconstitutionally vague statute, 21 U.S.C. § 841(b)(1)(A). All of the cases he cites, however, were decided before he was sentenced. Thus, Mr. Reed had a reasonable basis to raise this issue on direct appeal. As a result, he cannot satisfy the cause requirement by asserting the novelty of the claims raised in his § 2255 motion.
III. CONCLUSION
Because Mr. Reed cannot demonstrate cause in this case, we need not address the issue of prejudice. His failure to establish cause precludes the necessity of any further discussion. The judgment of the district court is affirmed.
Affirmed.
. See United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992) ("a section 2255 motion can not raise ... constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal”).
. Issues raised for the first time in a reply brief typically are not reviewed by this court. See Chrysler Credit Corp. v. Louis Joliet Bank & Trust, 863 F.2d 534, 540-41 (7th Cir.1988); Taylor v. Peabody Coal Co., 838 F.2d 227, 229 (7th Cir.1988). Nevertheless, as we now demonstrate in the text, after reviewing these arguments, we find Mr. Reed's appeal meritless.
. United States v. Harrington, 947 F.2d 956, 964 (D.C.Cir.1991) (addressing the prosecutor’s discretion under the federal sentencing guidelines); United States v. Stanley, 928 F.2d 575, 582-83 (2d Cir.1991) (recognizing that the prosecutor’s control over charging decisions affects the resulting sentence); United States v. Kikumura, 918 F.2d 1084, 1119 (3d Cir.1990) (Rosenn, J., dissenting) (expressing concern that the sentencing guidelines have replaced judicial discretion with prosecutorial discretion); and, United States v. Boshell, 728 F.Supp. 632, 637 (E.D.Wash.1990) (stating that under the sentencing guidelines the prosecutor’s decision on what to charge dictates the sentence imposed).
. The first circuit in Colon-Ortiz, although stating that the "or both” language of § 841(b)(1)(B) rendered that statute unclear, emphasized that the statute was not unconstitutionally vague given the extensive legislative history. Colon-Ortiz, 866 F.2d at 11. Thus, the case does not support Mr. Reed’s argument. See also United States v. Olloh, 927 F.2d 1, 2 (1st Cir.1990). United States v. Jones, 902 F.2d 1152, 1153 (4th Cir.1990), also cited by the appellant, deals with a different criminal section, 18 U.S.C. § 844(a).
. Even if we had found cause for Mr. Reed's procedural default, the requirement of prejudice could not be satisfied. He cannot demonstrate that the alleged errors at trial worked to his actual and substantial disadvantage because his claims are clearly without merit and did not affect his sentence. See United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1595, 71 L.Ed.2d 816 (1982). Mr. Reed claims that the federal prosecutor violated his due process rights by charging him under federal law, rather than under more lenient state law. This claim is entirely without merit. As we have noted, both federal and state officials may prosecute a defendant for crimes punishable under both federal and state law. See Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); Abbate v. United States, 359 U.S. 187, 194-95, 79 S.Ct. 666, 670-71, 3 L.Ed.2d 729 (1959).
Mr. Reed also argues that § 841(b)(1)(A) is unconstitutionally vague because it states, “such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life ... a fine ... or both.” 21 U.S.C. § 841(b)(1)(A). He argues that this language is "ambiguous” as it suggests that the court may choose between imprisonment or a fine, and therefore does not provide sufficient notice as mandated by the Due Process Clause. This interpretation, however, is directly at odds with the elimination of probation, parole, and suspended sentences as options under the statute. To accept Mr. Reed's interpretation would require one to believe that Congress intended to permit either sentences of a fine with no imprisonment or sentences of ten years or more with no options for parole or probation. It is highly unlikely that Congress would enact such a sentencing scheme. Indeed, all courts reviewing § 841(b)(1)(A) have interpreted it as requiring mandatory sentences. See, e.g., United States v. McMahon, 935 F.2d 397, 400 (1st Cir.1991); United States v. Hoyt, 879 F.2d 505, 511-12 (9th Cir.1989), modified in other respects, 888 F.2d 1257 (9th Cir.1989); United States v. Martinez-Zayas, 857 F.2d 122, 128-29 (3d Cir.1988); United States v. Musser, 856 F.2d 1484, 1486 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989).
Finally, Mr. Reed asserts that the district court should have applied the rule of lenity to interpret the unconstitutionally vague provisions of § 841(b)(1)(A). This argument, however, is not persuasive. Because the statute is not unconstitutionally vague, the rule is inapplicable and not at issue. Thus, Mr. Reed’s claims concerning the rule of lenity are also without merit.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_juryinst | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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".
James GORNICK, Appellant, v. UNITED STATES of America, Appellee.
No. 7301.
United States Court of Appeals Tenth Circuit.
July 15, 1963.
David L. Wood, Fort Collins, Colo., for appellant.
Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., on the brief), for appellee.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
SETH, Circuit Judge.
The appellant was indicted upon two counts, the first count for an escape from the Honor Farm of the United States Penitentiary at Leavenworth, Kansas, in violation of 18 U.S.C. § 751, and the second count for assaulting with a deadly weapon a federal employee while in the performance of his official duties, in violation of 18 U.S.C. § 111. Appellant moved for separate trials on each of the two counts of the indictment and the motion was denied. The case was tried before a jury and the appellant was found not guilty on Count I and guilty on Count II. Appellant filed a motion for a new trial on Count II which was denied.
The record shows that the appellant had been convicted in 1957 upon a plea of guilty to bank robbery and was being confined at the time in question at the Honor Farm of the United States Penitentiary at Leavenworth, Kansas. On the night of June 9, 1961, the officials at the Honor Farm found that the appellant was not in the dormitory as required and began a search for him. Two prison officers found the appellant walking along a highway in the vicinity of, and in the direction of the Honor Farm. When they approached him they ordered him to enter the car and he did so. As they were returning to the prison in the car, one of the officers noticed that the appellant had a knife in his hand and a scuffle ensued during which the officer was disarmed and the appellant pointed the officer’s pistol at the other officer who was driving the car and demanded that he “drive on.” The driver however stopped the car and pointed his own pistol at the appellant, and told him to “lay the pistol down.” The appellant did so, and he was returned and placed in confinement.
The appellant on this appeal urges that the trial court abused its discretion in not granting a severance and in not providing a separate trial for each of the two counts. He further urges that the trial court was in error in denying his motion for a judgment of acquittal because there was insufficient evidence to establish the elements of the offense of assault in that fear and apprehension on the part of the victim are material elements of the crime, and there was no evidence of such fear and apprehension. Further errors are urged in the charge and in the trial court’s failure to grant appellant’s motion to suppress certain testimony.
Rule 8(a) of the Federal Rules of Criminal Procedure provides that offenses may be charged in the same indictment if the acts or transactions are “connected together.” The matter of motions for severance is covered by Rule 14 which provides in part that if it appears that a defendant or the government is prejudiced by the joinder of offenses, the court may order an election or separate trials. Both the parties concede that the granting of separate trials or severance is a matter of discretion for the trial court. The action of the trial court will not be reversed except for clear abuse of discretion. Dauer v. United States, 189 F.2d 343 (10th. Cir.); Dennis v. United States, 302 F.2d 5 (10th Cir.). We do not believe that there has been any showing of prejudice to the appellant by the refusal to grant separate trials on each of the counts. As indicated above, appellant was found not guilty on the first count and guilty on the second. This court in Latses v. United States, 45 F.2d 949 (10th Cir.), in considering an alleged misjoinder of counts stated that the ordinary rule is that an acquittal on one misjoined count cures the misjoinder. The same holding is found in Beaux-Arts Dresses v. United States, 9 F.2d 531 (2d Cir.), where the court said that the result is the same as if the accused had been convicted upon an indictment with but one count. The same holding is found in Morris v. United States, 12 F.2d 727 (9th Cir.), and Weinhandler v. United States, 20 F.2d 359 (2d Cir.).
The appellant next contends that it was error not to grant his motion for judgment of acquittal and his motion for acquittal notwithstanding the verdict. The later motion was made in conjunction with a motion for new trial. The contention is that the evidence was not sufficient to sustain the verdict for the reason that it was not shown that the officer against whom the alleged assault was made was put in fear of bodily harm. The record shows that the accused pointed a loaded revolver he had just taken from another officer at the victim and told him to drive on. The record shows that the officers customarily kept their revolvers loaded. Appellant cites Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199, but in that case the question was whether the accused intended to inflict harm. The evidence was sufficient to support the verdict on this point and the jury was properly instructed on the elements of assault.
The appellant complains of the instructions given to the jury concerning possible bias of witnesses and thé effect of coercion and compulsion in the commission of a crime. We have examined the instructions on these points and under the facts developed during trial, the jury was given adequate guidance and we find no error.
Appellant moved unsuccessfully to suppress the testimony and evidence presented by an F.B.I. agent concerning statements made by the accused. The appellant testified that he gave him the “story” and there is no evidence that it was not so voluntarily given. There is no error in the use of memoranda by this witness when testifying. This is a matter in the discretion of the trial court. The trial court carefully and thoroughly examined this matter, and he observed the witness. There was no abuse of discretion.
Affirmed.
Question: Did the court conclude that the jury instructions were improper?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_casetyp1_2-3-1 | C | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - civil rights claims by prisoners and those accused of crimes".
Johnny FORTNER, Plaintiff-Appellant, Tony Anderson, Plaintiff, Paul J. Tyner, Plaintiff-Appellant, Darrell Phillips, Johnny Sorey, and James McClendon, Plaintiffs, v. A.G. THOMAS, Warden, Thomas Byrd, Executive Assistant and Donnell Lewis, Hearing Officer, Defendants-Appellees.
No. 90-8924.
United States Court of Appeals, Eleventh Circuit.
Feb. 18, 1993.
James Elliott, Savannah, GA (court-appointed), for plaintiffs-appellants.
John C. Jones, State Law Dept., Atlanta, GA, for defendants-appellees.
Before HATCHETT, Circuit Judge, HENDERSON and ESCHBACH , Senior Circuit Judges.
Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation.
HATCHETT, Circuit Judge:
As a matter of first impression in this circuit, we hold that a prisoner retains a constitutional right to bodily privacy. We remand this case to the district court for application of the test announced in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-63, 96 L.Ed.2d 64 (1987), to determine whether the prison regulations unreasonably impinge on the prisoners' constitutional rights to bodily privacy.
PROCEDURAL BACKGROUND
The appellants, male inmates at Georgia State Prison, appeal the dismissal of their 42 U.S.C. § 1983 action, alleging that the appellees, several correctional officials, violated their constitutional rights of privacy and due process. For the alleged violations of their constitutional right of privacy, the appellants seek monetary damages and in-junctive relief prohibiting female correctional officers from assignments that allow the officers to view the appellants nude in their living quarters, including their use of the showers and the toilet. The appellants also seek monetary and injunctive relief for the alleged violations of their rights to due process relating to disciplinary proceedings that occur when the female correctional officers charge them with indecent exposure, obscene acts, and insubordination.
On October 20, 1989, the appellees filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(a), asserting qualified immunity. On November 14, 1989, the appellants filed a first amended complaint in response to the appellees’ motion to dismiss, seeking to add two disciplinary hearing officers as “key players” in the violation of their due process rights. On September 14, 1990, the district court adopted the report and recommendation of a magistrate judge, and dismissed the appellants’ right to privacy claims on the grounds of qualified immunity and the due process claims based on the consent orders entered in Guthrie v. Evans.
In their complaint, the appellants claim that this controversy began anew when prison authorities began assigning female correctional officers to duties in the living quarters of male inmates. The appellants claim that the female officers act unprofessionally when they view nude male inmates walking around in undershorts, showering, and using the toilet. The appellants claim that the female officers flirt, seduce, solicit, and aroused them to masturbate and otherwise exhibit their genitals for the female officers’ viewing. The appellants also claim that the female officers file false disciplinary reports for obscene acts and insubordination in order to avoid reprimand when other prison authorities discover them engaged in such unprofessional activity. The appellants describe the relevant facilities in their living quarters at the Georgia State Prison. The appellants claim that the female officers file the disciplinary reports after spying on them through a one-inch crack in their cell doors, or after looking at them in the shower through a five by ten-inch window on the shower door.
In this complaint, the appellants also complain that the appellees have violated Policy Statement 590.1, which governs inmate discipline. The appellants claim that disciplinary officers improperly punished them with severe isolation and segregation sanctions, instead of the appropriate punishments for the moderate offenses of exposure, exhibition, and obscene actions. The appellants also claim that the female officers wrongfully charged them with insubordination, a high severity charge, instead of the proper exposure, exhibition, and obscene action offenses. Additionally, the appellants claim that the female officers’ false disciplinary reports resulted in isolation and segregation sanctions being imposed ninety-nine percent of the time, even though the disciplinary proceedings occurred without the benefit of physical evidence, witness testimony, proper notice, or the presence of the charging officer. The appellants detailed the disciplinary process at the Georgia State Prison in their motion to amend the complaint, summarizing the charges in several disciplinary reports and also describing the disposition of the matters.
ISSUES AND CONTENTIONS
The appellants contend that the district court erred in denying their November 14, 1989 amendment to the complaint adding the disciplinary hearing officers as additional defendants. The appellants argue that the district court committed clear error in denying their right to amend their complaint at least once as a matter of course before the appellees filed a responsive pleading. The appellants also contend that the district court dismissed their complaint improperly based on a finding that the appellees are entitled to qualified immunity. The appellants argue that the district court erred in determining that the female officers did not violate a clearly established right, because the generalized constitutional right to privacy was clearly established at the time. In addition, the appellants contend that the district court erred in dismissing their due process claims based on the consent orders entered in Guthrie. The appellants argue that their complaint seeks both injunctive relief and monetary damages which makes a contempt proceeding under Guthrie an inadequate remedy for their claims.
The appellees respond that the district court properly denied the appellants’ motion to amend because their motion to dismiss constituted a responsive pleading within the meaning of rule 15(a); and also contend that the district court properly concluded that qualified immunity shields them from the appellants’ right to privacy claims, and that the due process claims are precluded under Guthrie. We address each of these issues separately.
DISCUSSION
This court must review de novo a district court’s order dismissing a complaint, accepting all allegations in the complaint as true and construing the facts in a light favorable to the plaintiff. Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991).
I. PRISONERS’ RETAINED PRIVACY RIGHTS
We first note that generally, the existence of an affirmative defense will not support a rule 12(b)(6) motion to dismiss for failure to state a claim. A district court, however, may dismiss a complaint on a rule 12(b)(6) motion “when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.” Quiller v. Barclays American/Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 1993, 90 L.Ed.2d 673 (1986). In considering a defendant’s motion to dismiss based on qualified immunity, the district court must examine the complaint to determine “whether, under the most favorable version of the facts alleged, defendant’s actions violate clearly established law.” Bennett v. Parker, 898 F.2d 1530, 1535 n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring), cert. denied, — U.S. -, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991). In this case, the district court granted the appellees’ motion to dismiss based on qualified immunity, after concluding that a prisoner’s constitutional right to bodily privacy is not a “clearly established right” in this circuit. As to the appellants’ claim for damages on the alleged privacy violations, we agree that facts sufficient to give rise to a consideration of qualified immunity appears on the face of the appellants’ complaint.
A. In determining whether a government official has violated a clearly established constitutional right, a court must consider whether the contours of the right were sufficiently clear that reasonable officials, at the time of their actions, would have understood that what they were doing violated that right. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). The nonexistence of a decision specifically addressing the alleged right is a significant consideration in determining whether the right is clearly established. See Muhammad v. Wainwright, 839 F.2d 1422, 1424 (11th Cir.1987) (recognizing that a prisoner’s First Amendment right not to be disciplined when he failed to respond to his committed name is not clearly established based upon general rulings that prisoners retained limited First Amendment rights). In addition, the existence of Supreme Court cases or cases in this circuit that recognize the alleged right is particularly important in determining whether the law is sufficiently clear to a reasonable official. See Muhammad, 839 F.2d at 1424-25 & n. 7 (canvassing the cases in this circuit to determine whether an official violated clearly established law, and recognizing that the official’s awareness of a district court opinion recognizing the alleged right cannot, of itself, settle the law where the district court sits outside this circuit).
In this case, the district court properly found that neither this court nor the Supreme Court had recognized that a prisoner retains a constitutional right to bodily privacy. See generally Harris v. Thigpen, 941 F.2d 1495, 1513 n. 26 (11th Cir.1991) (recognizing that prisoners retain certain fundamental rights of privacy, even though the precise nature and scope of the privacy right is far from settled).
B. It is well established that the doctrine of qualified immunity protects government officials from civil damages liability as long as the officials could reasonably believe that their conduct did not violate clearly established statutory or constitutional rights. Anderson, 483 U.S. at 638, 107 S.Ct. at 3038; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Relying on our ruling in Muhammad, the district court concluded that this court has expanded the doctrine of qualified immunity to shield government officials from not only civil damages liability, but also to protect officials from claims for equitable relief. See Muhammad, 839 F.2d at 1424 (citing Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985), and concluding that “entitlement to qualified immunity means that the defendants are immune from suit rather than merely immune from liability for damages”). We reject the district court’s interpretation of Muhammad as establishing an expanded doctrine of qualified immunity in this circuit.
We first note that the language that the district court relied on is mere dicta, because the court in Muhammad reviewed only the district court’s order denying prison officials qualified immunity from personal liability in a prisoner’s section 1983 action. See Muhammad, 839 F.2d at 1423. In addition, we are convinced that the language in Muhammad stands only for the proposition that government officials may file an interlocutory appeal when a trial court denies a defense of qualified immunity from civil damages liability. For this proposition, the court in Muhammad appropriately cites Mitchell, 472 U.S. at 524, 105 S.Ct. at 2814, which addresses the issue of whether the denial of qualified immunity from civil damages liability should be immediately appealable as a collateral order because the denial would be effectively unreviewable on appeal from a final judgment. See Mitchell, 472 U.S. at 519 n. 5, 523 n. 7, 524-26, 105 S.Ct. at 2812 n. 5, 2814 n. 7, 2814-16 (noting specifically that the case does not involve a claim for injunctive relief, and also noting the continued availability of declaratory or injunctive relief as deterrence to the constitutional violations of a government official). Hence, we are persuaded that the court in Muhammad did not depart from the settled proposition that “immunity from damages does not ordinarily bar equitable relief as well.” Wood v. Strickland, 420 U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214 (1975). Accordingly, we hold that the district court erred in dismissing the appellants’ claims for injunctive relief based on qualified immunity.
C. Because on remand the district court must consider the appellants’ claim for in-junctive relief which raises an issue of first impression in this circuit, we now set forth the appropriate standards for reviewing the appellants’ claim for injunctive relief based on alleged violations of their constitutional right to bodily privacy.
As a matter of general principle, it is well established that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979); see also Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) (recognizing that prison walls do not separate inmates from their constitutional rights); Harris v. Thigpen, 941 F.2d at 1512 (same). It is also settled that a prisoner’s constitutional rights must be exercised with due regard for the “inordinately difficult undertaking” of modern prison administration. Turner, 482 U.S. at 85, 107 S.Ct. at 2259; see also Bell, 441 U.S. at 547, 99 S.Ct. at 1878 (recognizing that courts must give great deference to the decisions of prison officials relating to the administration of the facility). But, even though this court engages in a deferential review of the administrative decisions of prison authorities, the traditional deference does not mean that courts have abdicated their duty to protect those constitutional rights that a prisoner retains. Sheley v. Dugger, 833 F.2d 1420, 1423 (11th Cir.1987); see also Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974) (recognizing that federal courts will discharge their duty to protect constitutional rights when prison regulations or practices offend fundamental constitutional guarantees), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 1881-82, 104 L.Ed.2d 459 (1989).
In reviewing the appellants’ claim for injunctive relief, the district court’s first inquiry must be whether prisoners retain the right to bodily privacy. It is clear that prison inmates “ ‘retain certain fundamental rights of privacy.’ ” Harris, 941 F.2d at 1513 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 5 n. 2, 98 S.Ct. 2588, 2592 n. 2, 57 L.Ed.2d 553 (1978) and recognizing that "seropositive prisoners enjoy some significant constitutionally protected privacy interests in preventing the non-consensual disclosure of their HIV-positive diagnosis”). As stated previously, this court has declined to define the precise parameters of a prisoner’s constitutional right to privacy. See generally Harris, 941 F.2d at 1513 n. 26. Although we continue to approach the scope of the privacy right on a case-by-case basis, we now recognize that prisoners retain a constitutional right to bodily privacy.
We are persuaded to join other circuits in recognizing a prisoner’s constitutional right to bodily privacy because most people have “a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.” Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981); see also Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) (concluding that “we have little doubt that society is prepared to recognize as reasonable the retention of a limited right of bodily privacy even in the prison context”); Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir.1992) (recognizing that prison inmates retain the right to bodily privacy); Mitchenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988) (same).
In determining the merits of the appellants’ claim for injunctive relief against prison officials for alleged violations of their constitutional right to bodily privacy, the district court must apply the standard of review for evaluating prisoners’ constitutional claims which the Supreme Court articulated in Turner. When a prison regulation or policy “impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. Based on the ruling in Turner, this court in Harris identified the following four factors governing the reasonableness review of prison regulations:
(a) whether there is a ‘valid, rational connection’ between the regulation and a legitimate government interest put forward to justify it; (b) whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates; (c) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates and the allocation of prison resources generally; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns.
Harris, 941 F.2d at 1516 (quoting Turner, 482 U.S. at 89-91, 107 S.Ct. at 2261-63). We emphasize that the fourth Turner factor is not a “least restrictive alternative” test, but rather it allows an inmate to “point to an alternative that fully accommodates the prisoners’ rights at de minim-is cost to valid penalogical interests” as evidence that a restriction is not reasonable. Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262-63.
In sum, we affirm that part of the district court’s order dismissing the appellants’ claim for monetary damages for violations of their right to privacy, because the prisoners’ constitutional right to bodily privacy was not clearly established at the time, making the appellees immune for civil damages liability. We reverse and remand that portion of the district court’s order dismissing the appellants’ claim for injunc-tive relief, in light of our recognition that prisoners do retain a limited constitutional right to bodily privacy. Accordingly, we leave it for the district court to apply, in the first instance, the Turner “reasonableness” test in determining whether injunc-tive relief is appropriate for the alleged infringement of the appellants’ constitutional rights to bodily privacy.
II. DUE PROCESS CLAIMS
The district court dismissed the appellants’ due process claims after finding that their claims of unfair disciplinary procedures, including lack of proper notice, admission of evidence, and excessive punishments, are matters properly brought as a contempt action pursuant to the procedures set forth in Guthrie. See Guthrie v. Evans, CV No. 3068 (S.D.Ga. July 19, 1978, August 4, 1978, December 1, 1978) (orders approving consent decrees); see also Guthrie v. Evans, 815 F.2d 626, 628-29 (11th Cir.1987) (holding that the district court order approving the consent decree is a final judgment); Guthrie v. Evans, 93 F.R.D. 390 (S.D.Ga.1981) (overruling objections to a settlement of contempt proceedings, which class counsel filed on June 17, 1981, seeking compliance with the August 4, 1978 order approving a consent decree). In dismissing the appellants’ due process claims, the district court relied on this court’s ruling in Saleem v. Evans, 866 F.2d 1313 (11th Cir.1989), which held that Georgia prison complaints that parallel those addressed in Guthrie may only be filed through Guthrie class counsel. Saleem, 866 F.2d at 1314. Because we conclude that the district court erred in relying on the ruling in Saleem, we reverse and remand the district court’s order dismissing the appellants’ due process claims.
It is clear that a prisoner’s claim for monetary damages or other particularized relief is not barred if the class representative sought only declaratory and injunctive relief, even if the prisoner is a member of a pending class action. Spears v. Johnson, 859 F.2d 853, 854 (11th Cir.1985) (recognizing that a prisoner’s claim for monetary damages was not barred from federal court based on a pending prisoner class action where the class representatives sought only injunctive and declaratory relief), opinion vacated in part on other grounds, 876 F.2d 1485 (11th Cir.1989); Herron v. Beck, 693 F.2d 125, 127 (11th Cir.1982) (recognizing that a prisoner was not barred from the federal courts based on a pending class action, because the prisoner sought monetary damages and other specific relief not addressed in the class action which only sought declaratory and injunctive relief); Bogard v. Cook, 586 F.2d 399, 408-09 (5th Cir.1978) (recognizing that a prisoner class action does not bar an individual prisoner's subsequent suit for damages, where the class representatives sought only equitable relief, where prisoners had insufficient notice of their right to seek individual monetary damages, and where joinder of all individual damage claims would have made the class action unmanageable), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).
In contrast, the court in Saleem was not faced with a prisoner’s claim for monetary damages, as well as equitable relief addressed in Guthrie. See Saleem, 866 F.2d at 1313-14 (involving a section 1983 action alleging violations of prisoner’s First and Fourteenth Amendment rights, and apparently seeking only to be provided with a Muslim minister of the appropriate sect to minister to the prisoner’s religious needs). Because the class representatives in Guthrie sought only injunctive relief for the alleged unconstitutional conditions and practices of the Georgia prison system, the district court erred in dismissing the appellants’ complaint which included a claim for monetary damages. See Spears, 859 F.2d at 855. Accordingly, we hold that the district court improperly dismissed the appellants’ complaint which seeks both injunc-tive relief and monetary damages for alleged violations of their right to due process in prison disciplinary proceedings.
We note that even though it was not appropriate for the district court to dismiss the appellants’ claims for monetary damages based on Guthrie, on remand, the district court may properly consolidate the appellants’ claims with the class litigation, stay the appellants’ action pending referral of their complaints to class counsel, or transfer their case to the Guthrie court. See Herron, 693 F.2d at 127 (recognizing that it might have been proper to consolidate the plaintiff’s claims for monetary damages with the class litigation or to stay the plaintiff's action pending referral of his complaints to class counsel, but that dismissal was not appropriate); 28 U.S.C. § 1406(a) (authorizing a district court to transfer a case to another division or district “in the interest of justice”); see also Spears, 859 F.2d at 855 (recognizing that a transfer of a prisoner’s claim for monetary damages to the court considering the prisoner class action is appropriate to avoid interference with the integrity of a consent order and also overlap between the complaints of class counsel and the individual prisoner).
III. RIGHT TO AMEND
Having concluded that the appellants’ due process claims are not precluded under Guthrie, we hold that the district court erred in denying the appellants’ motion to amend their complaint adding the two disciplinary officers as defendants. The appellees contend that their motion to dismiss was a responsive pleading for purposes of rule 15(a). We disagree. It is well established in this circuit that a motion to dismiss is not considered a responsive pleading for purposes of rule 15(a). Driscoll v. Smith Barney, Harris, Upham & Co., 815 F.2d 655, 659 (11th Cir.1987), vacated in part on other grounds 484 U.S. 909, 108 S.Ct. 253, 98 L.Ed.2d 211 (1987), cert. denied in part 484 U.S. 914, 108 S.Ct. 261, 98 L.Ed.2d 218 (1987); Chilivis v. Securities & Exchange Comm’n, 673 F.2d 1205, 1209 (11th Cir.1982); McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir.1979). Because the appellees had only filed a motion to dismiss, not a responsive pleading, the appellants were entitled to amend their complaint at least once as a matter of course at any time before a responsive pleading was served. Fed.R.Civ.P. 15(a); McGruder, 608 F.2d at 1025. Accordingly, we reverse the district court’s denial of the appellants’ motion to amend their complaint adding the two disciplinary officers as defendants. As the action proceeds on remand, the district court may, of course, entertain any appropriate motion from the defendants regarding their presence in this case. We hold only that the district court erred in denying the appellants’ motion to amend their complaint before the appellees filed a responsive pleading.
CONCLUSION
We affirm the order of the district court dismissing the appellants’ claims for monetary damages for alleged violations of their right to bodily privacy, based on its correct conclusion that a prisoner’s constitutional right to bodily privacy was not clearly established at the time. We, however, reverse and remand the district court’s order dismissing the appellants’ claims for injunc-tive relief based on alleged violations of their constitutional rights to bodily privacy. We now recognize that a prisoner retains a constitutional right to bodily privacy. On remand, the district court must apply the “reasonableness” test articulated in Turner in reviewing whether the prison regulations unreasonably impinge on that constitutional right to bodily privacy.
In addition, we reverse and remand the district court’s order dismissing the appellants’ due process claims, because dismissal of a prisoner’s complaint which includes a claim for monetary damages is inappropriate when dismissal is based on a class action in which the class representatives sought only declaratory and injunctive relief. On remand, the district court may dispose of the appellants’ due process claims with a transfer to the Guthrie court or other appropriate means. We also reverse and remand the district court’s denial of the appellants’ motion to amend their complaint adding the two disciplinary officers as defendants.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. We would effectively freeze the law on prisoners’ rights, as well as other individual rights, if this court accepted the district court’s interpretation of Muhammad to expand the doctrine of qualified immunity to shield officials from all claims for equitable relief whenever the law was not already clearly established.
. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981).
Question: What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?
A. suit for damages for false arrest or false confinement
B. cruel and unusual punishment
C. due process rights in prison
D. denial of other rights of prisoners - 42 USC 1983 suits
E. denial or revocation of parole - due process grounds
F. other denial or revocation of parole
G. other prisoner petitions
H. excessive force used in arrest
I. other civil rights violations alleged by criminal defendants
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.
HURD v. HURD.
No. 10171.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 9, 1949.
Decided Dec. 27, 1949.
Messrs. Kenneth B. Hamilton and Luther E. Angle, Washington, D. C., for appellant.
No appearance for appellee.
Before McALLISTER, sitting by designation, CLARK and BAZELON, Circuit Judges.
McALLISTER, Circuit Judge.
Mary Beck Hurd, appellant, brought suit for divorce from marriage on the ground of voluntary separation from bed and board for five consecutive years without cohabitation. On the conclusion of the proofs, the district court denied a decree of divorce on the .ground that appellant’s evidence was -insufficient; and she appeals.
The proofs disclosed that the parties were married April 10, 1930. On September 2, 1938, a child was born of the marriage, who is now living with appellant, and has been continuously with her since birth. From the time of their marriage,the parties continued to reside together and cohabit as man and wife until August 15, 1941. At that time, differences arose between them, and they agreed to live apart from each other, and voluntarily separated from bed and board. About the time of this separation, the husband agreed to a property settlement, and as a result thereof, conveyed to appellant certain property including their home in the District of Columbia. However, in view of the husband’s inability to get a room due to the crowded conditions in Washington in 1941, and on account of the additional money he could contribute to the support of their infant child, it was amicably agreed between the parties that he could have a room in their former home. This room was adjacent to the bedroom occupied by appellant and her child. Appellant’s father lived in 1lie same house. The parties did not thereafter live together socially or in the home. The husband had no meals in the house after the date of separation in 1941; he was never there except between approximately midnight and 6:00 or 6:30 o’clock in the morning. He contributed $15.00 a week to the support of his daughter up to July, 1948, when the parties entered into a separation agreement relative tc the custody of the child, in which it was agreed that appellant would have such custody and that appellee would pay her $50.00 a month for the child’s support. At the time of this agreement, the husband moved from the home and appellant sold it, and with her child, moved to her father’s home, where she is now living. When the case was heard in 1948, the parties had not cohabited for seven years.
Appellant’s testimony with respect to all of the foregoing was undisputed, and the trial court stated that it did not question her veracity. In addition, her testimony was supported by two other reputable witnesses. However, the court declined to grant a decree on the ground that even though marital relations had ceased between them, such a circumstance would not lead to the conclusion that there was a voluntary separation between them; that this was only evidence of estrangement and not of separation; that a vital fact in the case was that even though all marital relations had ceased between them; the parties continued to live in adjoining bedrooms. The court, accordingly, dismissed the complaint.
Title 16, Section 403, of the District of Columbia Code, 1940, provides: “A divorce from the bond of marriage * * * may be granted for * * * voluntary separation from bed and board for five consecutive years without cohabitation, * *
That the parties to a divorce suit continue their residence in the same dwelling, is merely a fact which is evidentiary on the question whether they are living together as husband and wife; but a wife seeking a divorce under the District of Columbia Code is not required to live separate and apart from her husband further than so to segregate herself from him as to avoid condoning acts which she charges as the 'basis for divorce. “To do this, the essential thing is not separate roofs, but separated lives—that the parties so live, whether under one roof or two, as to abandon with apparent permanency of intention, the relation of husband and wife in all but the most technical legal sense.” Continued occupancy of the same house may be evidence of harmonious relations, or of compelling necessity on the part of one or both of the parties. Pedersen v. Pedersen, 71 App.D.C. 26, 107 F.2d 227. Where parties have continued to live in the same house, and' alternated in the use of the same dining table, it is held that this is not a circumstance affecting the granting of a divorce, where there had been a voluntary separation from bed and board for the statutory period without cohabitation. For, as was observed, the parties, in such a case, are actually separated as effectively as though they were living in different homes. Boyce v. Boyce, 80 U.S.App.D.C. 355, 153 F.2d 229. Acquiescence in such separation is “voluntary” within the meaning of the statute, the purpose of which is to permit termination in law of certain marriages which have ceased to exist in fact. Parks v. Parks, 73 App.D.C. 93, 116 F.2d 556.
In this case, under the law and the evidence, appellant was clearly entitled to a decree of divorce. It appears that a property settlement has’ been entered into 'between the parties and, apparently, suitable provision has been made by the husband for the support of the minor child.
In accordance with the foregoing, the judgment is set aside, and the case remanded to the district court for entry of a decree in favor of appellant in accordance with this opinion.
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_usc1sect | 841 | 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".
UNITED STATES of America, Plaintiff-Appellee, v. Monty Edward CLAYBORNE, Jr. and George Ingram, Defendants-Appellants.
Nos. 77-1568, 77-1570.
United States Court of Appeals, Tenth Circuit.
Submitted July 12, 1978.
Decided Aug. 22, 1978.
Joseph F. Dolan, U. S. Atty., and William C. Danks, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.
Lawrence Rotenberg, Denver, Colo., for defendant-appellant Clayborne.
Michael F. DiManna, Denver, Colo., for defendant-appellant Ingram.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
Clayborne and Ingram were indicted for the manufacture of a controlled substance, amphetamines, and for conspiracy to so manufacture. The substantive offense was pursuant to 21 U.S.C. § 841(a)(1), whereas the conspiracy was pursuant to 21 U.S.C. § 846 and § 841(a)(1). A third participant, one Kuck, was also indicted and convicted. That judgment has been affirmed by this court in United States v. Kuck, 573 F.2d 25 (10th Cir. 1978). Ingram was granted a mistrial, but on retrial was found guilty of conspiracy. The manufacturing count was then dismissed. We here review the convictions of Clayborne and Ingram.
The principal issue common to both defendants is whether the court erred in denying a motion to suppress certain evidence found during a warrant search of a clandestine amphetamine laboratory. It is claimed that this evidence was tainted by the illegal use of an electronic tracking device attached to a container of ether. The signal from this was located in the laboratory where the controlled substance was produced. The Federal Drug Enforcement Administration agents installed this device in a drum of chemicals purchased by Ingram.
Other points raised by Ingram herein are, first, that his Fifth Amendment right not to be placed twice in jeopardy for the same offense was violated. This, he argues, was a consequence of the granting by the court of the mistrial (on his motion). A second point on behalf of Ingram attacks the receipt by the trial court of an index card which had certain chemical formulae on it for production of amphetamines. This was for use of chemicals which are used in making methamphetamines. The defense objection to this was that it was seized after indictment and thus should have been excluded as being in violation of Rule 403 of the Federal Rules of Evidence.
* * * * * *
I.
In November 1976, Ingram ordered a quantity of ethyl ether from the Service Supply Company of Denver. At the same time he inquired about the obtaining of some phenyl-2-propanone. Both of these chemicals are used in the manufacture of methamphetamines. So following the placing of the order, the company, as a result of prearrangement, notified the Drug Enforcement Administration. On November 29, Ingram and another person picked up a 55-gallon drum of ethyl ether at Service Supply. He was observed doing this by agents of the DEA, who followed him to the home of Ruck’s parents.
A subsequent transaction is the one which is here in issue. That occurred on December 20, 1976. On that date, Ingram again put in an order for ethyl ether. The DEA agents installed an electronic tracking device or “beeper” in a 55-gallon drum and then took the drum to Service Supply, where it was filled with ether and delivered to Ingram. The electronic beeper sends out periodic radio signals, which allow its location to be established and monitored.
On the day (December 29) that Ingram picked up this drum complete with the beeper, the agents followed him to his home and observed the drum being unloaded and taken into the house. The agents then proceeded periodically to monitor its presence to be sure that the drum did not move out of Ingram’s home. However, on January 1, the beeper signal was no longer there and eventually the signal was found to emanate from 1229 South Bannock Street in Denver. These were commercial premises which had been leased by Clayborne. The agents detected the smell of ether and noted that the windows were covered so as to prevent viewing the inside. After a day’s surveillance, a search warrant was obtained and executed on January 2. The search produced methamphetamines together with materials and paraphernalia for their manufacture. This was the evidence which the defendants sought to have suppressed as being in violation of their Fourth Amendment rights. The contention was that the violation related back to the initial failure to obtain a warrant for use of the beeper.
The trial court denied the motion to suppress and did so on the basis that Ingram lacked standing to challenge the presence of the beeper inside the oil drum, it being the property of the DEA, and also because it was not a Fourth Amendment question.
II.
The starting point in solving this present problem is a consideration of the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This is a new variation which questions whether, as a consequence of failure to obtain a warrant at the outset authorizing use of the beeper, the evidence obtained through subsequent use of the beeper, including that resulting from the search of the laboratory, was illegal because it was not in accordance with the requirements of the Fourth Amendment. In Katz, the Court held that the use of an electronic bug or microphone placed on the roof of a public telephone booth violated the Fourth Amendment. The reason was that the question was not whether places or property enjoy an immunity because of the Fourth Amendment, but, rather, whether the people are entitled to protection (and not places). The Court went on to hold that when the defendant closed the door of the telephone booth he believed that he had shut out all other persons and that he had privacy which would insure that his conversation would not be heard by others. The Court also stated that that which a person exposes to the public may not be the subject of Fourth Amendment protection, but that, on the other hand, that which he seeks to preserve as private, even in an area accessible to the public, may enjoy constitutional protection.
Several circuits have considered the beeper problem in the light of Katz. See United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 614 (1976), in which agents installed a beeper in a drum of caffeine which had been ordered by the defendants. Visual surveillance together with the beeper permitted the agents to isolate a drum of caffeine in the garage of the defendants. It was held that no reasonable expectation of privacy had been invaded, notwithstanding that the beeper was employed in a “probing, exploratory question for evidence.” The Ninth Circuit relied on the Supreme Court’s decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). There the Court held that the warrantless scraping of paint from the exterior of a car parked in a public lot together with the measurement of its tire tread was not a violation for the reason that the expectation by the defendant of privacy was minimal. The Ninth Circuit related Hufford to the Cardwell holding in support of its conclusion that there was little expectation of privacy in driving along a public road. The beeper was viewed as merely an aid to or substitute for visual surveillance. It was regarded as being similar to the use of binoculars or trained dogs. Cf. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977), wherein we approved the use of a trained dog to detect the scent of marijuana in a locker. That opinion could see no reasonable expectation of privacy in the air space around the locker.
The First Circuit in United States v. Moore, 562 F.2d 106 (1st Cir. 1977), has also considered the question. As in the present case, federal agents installed a beeper in a container of chemicals which had been ordered by the defendants.' When delivery was taken a second beeper was attached to their van. The agents, aided in part by the beepers, followed the defendants to a house. The beeper in the container was subsequently used to monitor the presence of the chemicals inside the house. Subsequently, a search warrant was obtained and the search revealed the clandestine manufacture of methamphetamines. The court distinguished between the use of a monitoring device to track a vehicle and the use of it to monitor the continued presence of the chemicals in the house. The latter was considered to be an invasion of the privacy of the home. It was acknowledged that the beeper in the car constituted an intrusion, but that its use could be justified on the basis of the mobility of the car and the lack of reasonable expectation of privacy with respect to it. Probable cause was held to exist with respect to the monitoring of the location of the vehicle. Once the defendants left the vehicle and entered the house, the right of privacy existed free from war-rantless intrusion by the government. The court also observed that the fact that the defendant initially had no rights in the chemical boxes was not of any significance since they later obtained lawful possession, and the agents sought to use the electronic devices after this.
The court held that evidence derived from the use of the beeper while the material was in the house had to be suppressed. The court did, however, leave the door open to separation of the evidence illegally obtained while in the house and the use of evidence which derived from the beeper pri- or to its being taken into the house, e. g., while the material was being transported in a car. There was a remand to the district court to determine the part of the evidence which had to be suppressed and that which did not.
In the instant case the beeper surveillance evidence within the house and that within the laboratory do not come together as one connected transaction. The agents lost contact with the device following the movement from the house. An independent effort was necessary to reestablish contact. So the laboratory contact is not tainted by the surveillance within the house.
Our court has' recently filed an opinion which, although not factually on all fours with this case, is similar to it. We refer to United States v. Shove a, 580 F.2d 1382 (10th Cir. 1978). The beeper was there used only for the purpose of tracking the car. Federal agents arranged a delivery to the defendant and followed him to a house occupied by a codefendant, which home was in Denver. A beeper was placed on the codefendant’s car at that place and shortly thereafter agents by use of the beeper were able to trace the car to the proverbial clandestine laboratory. The court recognized that electronic tracking devices were appropriate even without prior court approval where there was probable cause or exigent circumstances. Probable cause was found to be present. Circumstances relating to probable cause were substantially the same background circumstances which are here.
Judge Barrett, writing for the panel, expounded the established truth that there was minimal expectation of privacy in an automobile along a public road, citing United States v. Frazier, 538 F.2d 1322 (8th Cir. 1976), cert. denied, 429 U.S. 1046, 97 S.Ct. 751, 50 L.Ed.2d 759 (1977), wherein the use of a beeper on a car was approved in connection with an ongoing kidnap plot.
In the case before us it was the beeper on the inside of the drum of ether which enabled the agents to locate the laboratory. The agents in our case had to use an airplane to pick up the beeper signal and locate the building in which the clandestine laboratory was located. This was true because in the first instance they were not aware that the drum had been moved from Ingram’s house. Given the proposition that the home cannot be invaded without a warrant, does it follow that a clandestine laboratory in which amphetamines are likely to be manufactured enjoys the same protection?
Although this case is factually similar to our decision in Shove a, in the Ninth Circuit’s decision in Hufford and the First Circuit’s decision in Moore there are differences. Both Shove a and Moore held that beeper surveillance without warrants for the purpose of monitoring vehicles was valid. In all of the cited cases, and also in the present case, there is information of the agents amounting to probable cause to believe that a controlled substance was about to be made. While approving the use of the beeper for monitoring the automobile, the First Circuit in Moore distinguished the use of the beeper in the home. It held that there could not be a warrantless search inside the house. It also held that the lessened expectancy of privacy when using vehicles had no relevance; that although surveillance of the automobile could be conducted without a warrant, the same was not true of a home.
Hufford comes closest to this case since there the beeper was inside a garage. Here the beeper revealed the presence of the drum of ether inside the clandestine laboratory at 1229 South Bannock. Does the use in these circumstances constitute a per se violation of the Fourth Amendment? We conclude that it does not. The clandestine laboratory here was a commercial establishment which was susceptible not only to outside viewing, but also to ingress and egress of the public. Strict privacy as in a home was not to be properly expected here. There is a vast difference between it and Katz. The difference is found in a comparison of the size and extent of the intrusion in each case. That in Katz is great because of the wholly unexpected eavesdropping on a conversation. We say that it was proper to use the device to locate the drum of chemical in the clandestine laboratory at 1229 South Bannock Street, a new location which proved to be a commercial building with the windows covered to protect against viewing the activities and materials inside. It was also within the law for them to make every effort to ascertain what was going on within the laboratory including the testing of the odors and the observations that the windows were covered. We consider the electronic beeper as a substitute for persistent extensive visual effort. We do not say that the laboratory stands on the identical footing as the automobile, and clearly it is not the same as Ingram’s home, which the Fourth Amendment protects from invasion. We are persuaded by the fact that the intrusion of the clandestine laboratory was slight. Also, it is not to be argued that defendant-appellant had a justifiable or reasonable expectation that there would not be any disturbance of privacy. Also, the use of the beeper within the laboratory was vastly different from the use of the recording device in the telephone booth in Katz. The invasion in Katz was of great magnitude in comparison with the intrusion here.
Under these special facts, then, we must hold that the slight intrusion was not per se in violation of the Fourth Amendment and that the use of the beeper without a warrant was not invalid. The trial court did not err in denying the motion to suppress.
III.
The defendant Ingram maintains that his rights under the Double Jeopardy Clause were violated when the court granted a mistrial. He concedes that where the defendant moves for the mistrial the general rule is that retrial is not barred except in the instance in which the judicial or prosecutorial error that prompted the motion was intended to provoke the motion or was otherwise motivated by bad faith or undertaken to harass or prejudice petitioner. See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) (quoting United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)).
Several of the circuits have characterized the test as to whether retrial is to be barred even though the mistrial was at the request of the defendant as whether there was gross negligence or intentional misconduct which led to the granting of the mistrial. See United States v. Martin, 561 F.2d 135 (8th Cir. 1977); United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977).
Ingram maintains that the trial judge was grossly negligent in violating his right to be present at trial by not adjourning the trial to determine whether his absence was voluntary. We disagree. The judge was talking about the fact that Ingram was late for the trial once and, finally, was absent altogether for a day due to his having been arrested and placed in jail in Aurora, a nearby community. The court had gone ahead with the trial in his absence, but once the judge found out that his absence had been involuntary, he granted the mistrial on the motion of the defendant. Under these circumstances, we fail to see that there was either invalid coercion exercised by the court or that there was negligence or other misconduct.
IV.
Ingram’s final contention is that the trial court erred in receiving Exhibit 14, an index card with some chemical formulae having to do with chemicals which could be used for making amphetamines. This was taken from Ingram’s person when he was arrested two months after the indictment. At the first trial the Exhibit was excluded because Ingram was being tried with Clay-borne. At the second trial Ingram was tried alone and the Exhibit was received. The defendant objected on the ground that it resulted from investigation subsequent to the indictment and was inadmissible under Rule 403, which declares that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion.
Defendant’s argument in reality is that the Exhibit evidenced acts subsequent to the conspiracy and thus it is contrary to the rules in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963,1 L.Ed.2d 931 (1957), and United States v. Floyd, 555 F.2d 45 (2d Cir. 1977), which concerned evidence of post-conspiracy acts or cover-up tactics which are quite different from the card in the present case. It is for the trial court to determine relevance, and we cannot agree with defendant that it is incompetent. It does not appear that the evidence was inconsistent with the indictment. Indeed it was entirely consistent with it and receipt of it was not erroneous.
The judgment of the district court is affirmed.
. We agree with this ruling and would take the same position in the case at bar if the proposition were to be seriously argued.
. The testimony of one of the agents included a description of the building.
Q Would you describe the warehouse, whatever type of building is appropriate at 1229 South Bannock?
A The building is a long one-story building with four sets of office or industrial space in it. Each space had a large overhead door and a single small door adjacent to the overhead door, both front and rear. 1229 was the space the further south on the building.
Q So there are actually several entrances in that one warehouse building?
A Yes, sir, four.
. There is no evidence which resulted from the clearly illegal monitoring of the inside of the home.
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_altdisp | 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 an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Henry AVILA, Defendant-Appellant.
No. 93-1063.
United States Court of Appeals, Tenth Circuit.
June 28, 1993.
Henry Avila, pro se.
James R. Allison, Interim U.S. Atty., Joseph T. Urbaniak, Jr. and John M. Hutchins, Asst. U.S. Attys., Moúntain States Drug Task Force, Denver, CO, for plaintiff-appel-lee.
Before TACHA, BALDOCK and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9, The cause therefore is ordered submitted without oral argument.
PER CURIAM.
Mr. Avila appeals from the district court’s order denying his motion for sentencing range reduction. See 28 U.S.C. § 2255; 18 U.S.C. § 3582(c)(2). We affirm.
The Sentencing Guidelines now permit a three-level downward adjustment for acceptance of responsibility in certain circumstances. See U.S.S.G. § 3E1.1(b) (Nov. 1, 1992) & app. C, amend. 459 (eff. Nov. 1, 1992). Mr. Avila contends that, under the rule of lenity and 18 U.S.C. § 3582(c)(2), the district court should reduce his sentence one level, because at the time he was sentenced, only a two-level downward adjustment was in effect.
Section 3582(c)(2) empowers a district court to reduce a term of imprisonment when a sentencing range has subsequently been lowered by the Sentencing Commission. However, such power is tethered to the factors contained in § 3553(a), including any pertinent policy statement of the Sentencing Commission. 18 U.S.C. § 3553(a)(5). The policy statements accompanying U.S.S.G. § 1B1.10 provide that if an amendment is not listed as covered, a reduction in sentence based on the amendment would not be consistent with the policy statement. U.S.S.G. § 1B1.10(a), p.s. Amendment 459, on which Mr. Avila relies, is not covered by the policy statement. See U.S.S.G. § 1B1.10(d), p.s. Thus, the amendment to § 3E1.1 cannot be applied retroactively and it may not serve as a basis on which to reduce his sentence. See United States v. Rodriguez, 989 F.2d 583, 587 (2d Cir.1993).
AFFIRMED.
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_respond1_1_3 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
THE JOSEPHINE. TEXAS CO. (SOUTH AMERICA), Limited, et al. v. CUMMINS et al.
No. 4408.
Circuit Court of Appeals, Third Circuit.
April 6, 1931.
Acker, Manning & Brown, of Philadelphia, Pa., and Bigham, Englar, Jones & Houston and Osear R. «Houston, all of New York City, for appellants.
Howard M. Long, of Philadelphia, Pa., and Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for appellees.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
WOOLLEY, Circuit Judge.
The Schooner “Josephine,” having sailed from Port Arthur, Texas, arrived at Pernambuco, Brazil, her port of destination, long overdue with her cargo damaged by water taken aboard during heavy weather. The Texas Company, the ostensible owner of the cargo and party to the charter, filed a libel in rem for damages. Although The Texas Company (South America) Limited, an affiliated corporation, .intervened as the real party injured, we shall, for convenience, speak of the cargo owner as the libellant.
The case was tried on an issue of law arising from the owner’s warranty of the schooner’s seaworthiness and on a corresponding issue of fact. The District Court, finding her seaworthy, entered a decree dismissing the libel. The libellant appealed.
Before coming to the facts we pausé to make certain the issue raised by the pleadings and briefly to examine the applicable law.
The cargo owner avers in its libel that in December 1917 it entered into a charter party whereby the shipowner agreed to let and the libellant agreed to hire the schooner for transportation of petroleum products on a voyage between the ports stated; that early in April 1918, the libellant put aboard the schooner, then lying at Port Arthur, Texas, the agreed cargo in good order and condition; that on April 13 she sailed and after a voyage of four months reached her port of destination and delivered the cargo not in the good order and condition in which it was shipped but damaged through negligence of the schooner in respect to loading, stowage, custody and care, and through her unseaworthiness. As the issue raised by the libellant’s averment of negligence in loading, stowage, etc. was not separately pressed at the trial, the pertinent part of the schooner’s answer may be limited to the owner’s traverse of the libellant’s averment of her unseaworthiness and to his reply that he had used due diligence and ordinary care to make the schooner seaworthy in all respects and that at the time of sailing she was seaworthy and was properly manned, equipped and supplied for the voyage, and that any damage sustained by the cargo was not caused or contributed to by any fault on his part but was occasioned by perils of the sea which were excepted in the charter party and bill of lading.
Thus it is clear from the pleadings that the libellant relies for its law upon the owner’s express warranty in the charter party as to seaworthiness, namely, that the schooner was “tight, staunch, strong, and in every way fitted for the voyage.” The Edwin I. Morrison, 153 U. S. 199, 14 S. Ct. 823, 825, 38 L. Ed. 688; The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; The Lockport (D. C.) 197 F. 213. The owner however pleads the Harter Act (27 Stat. 445 [46 USCA §§ 190-195]) which makes no change in his duty under the warranty to furnish a seaworthy vessel, The Carib Prince, 170 U. S. 655, 18 S. Ct. 753, 42 L. Ed. 1181; The Cornelia (D. C.) 15 F.(2d) 245, but does modify liability to the extent that if he used diligence to see that the vessel was seaworthy he and his vessel are exempt from liability for loss arising from various causes — among them perils Of the sea. The Fort Gaines (D. C.) 21 F.(2d) 865; Id. (D. C.) 24 F.(2d) 849, affirmed Federal Forwarding Co. v. Lanasa (C. C. A.) 32 F.(2d) 154; The Agwimoon (D. C.) 24 F.(2d) 864; affirmed Atlantic Gulf & West Indies S. S. Lines v. Interocean Oil Co. (C. C. A.) 31 F.(2d) 1006, distinguished. The distinction between due diligence imposed upon an owner by the Harter Act and his relief from liability on the one hand and the owner’s duty and liability under his general warranty of seaworthiness on the other hand need not be discussed in this case because the evi denee bears equally upon the question of due diligence and the question of seaworthiness. And so evidently thought the proctors for the opposing parties, for both looked upon the schooner’s seaworthiness as the center of the ease and each voluntarily, and at once, assumed the burden of proving the opposite of the issue, respectively. This, however, does not relieve the respondent owner of his burden of proving the seaworthiness of his schooner, or of proving the exercise of due diligence in making her seaworthy as a prerequisite to availing himself of the liberality of the Harter Act, by showing that damage to the cargo arose from one of the exceptions in the charter party, The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748, which, as pleaded in this ease, is perils of the sea. The Cornelia, supra. Therefore the first question, (and, it may be, the only one), is that of the schooner’s seaworthiness under the warranty. In considering this question we shall follow the voyage through the evidence in order to determine the schooner’s condition at the start and her condition at sea in view of the perils she encountered.
As a warranty of seaworthiness must be construed as requiring the vessel to be seaworthy when she sails, Federal Forwarding Co. v. Lanasa (The Fort Gaines) 32 F.(2d) 154 (C. C. A.); Luckenbach v. McCahan Sugar Co., 248 U. S. 139, 150, 39 S. Ct. 53, 63 L. Ed. 170,1 A. L. R. 1522, the first question of fact bears on the condition of the schooner when she put to sea.
The “Josephine” was a wooden craft of about 940 gross tons, originally built with barkentine rigging but later changed to a four mast schooner. She was launched in 1896. Advancing in age, she was in 1916 stiffened by placing heavy top sister keelsons along her entire length and heavy tumbuckle rods athwartship. Nevertheless she was in 1917 hogged to the extent of fourteen inches.
From December 1915 to March 1918, a period of twenty-eight months, the “Josephine” was repaired four times at a cost of $17,500, of which $1,742 was expended upon her late in 1917. These facts and figures were used by the libellant as proof of the schooner’s bad condition and were relied upon by the owner as evidence of her good condition and of his diligence in making and keeping her seaworthy. To fortify its interpretation of these figures the libellant produced two witnesses who had surveyed the schooner in-1919 — nine months after she had sailed from Texas on the voyage in question and two months after she, had grounded on a later voyage. They testified that the condition of her hull was bad and gave their opinion that judging from what they saw when they examined her in January 1919 she must have "been, unseaworthy when she sailed on the voyage in April 1918. Against this opinion evidence by relation back to the critical time of departure there was direct evidence for the owner which showed that the schooner was under repairs at Mobile late in 1917 and after their completion she was reelassed by-the American Bureau of Shipping as A 1% for a six year period, the highest class for a schooner of her age; and there was testimony by the surveyor for the bureau that he examined the sehooner in the doek at Mobile and made a report on March 29,1918, specific as to details, and concluding: “Ship in good condition, this has been endorsed on her Class Certificate.” He also testified that at the time of his certificate she was seaworthy and in condition to take the cargo on the chartered voyage. Two weeks later she sailed.
True, the schooner was old, but age alone is not evidence of unseaworthiness. A wooden ship may be old and still be fit.
Finding the sehooner seaworthy at the inception of the voyage, the next question is, did she afterward become unseaworthy at a time and under circumstances which rendered the owner by due diligence capable of reconditioning her?
Sailing from Port Arthur, Texas, on April 13 the schooner’s troubles began the very next day when, encountering high winds in the Gulf of Mexico, she began to. lose her sails. The winds increased to hurricane force until by April 19 she had been practically stripped of her sails. She then put about and staggered back to the coast, arriving at Galveston on April 23, where she laid by awaiting new sails. There is no evidence that in this experience the hull of the sehooner had become unseaworthy. Indeed, no one seems to have thought anything about it; at least there is no evidence that she leaked during the gulf storm, or that loose planking or loose caulking was discovered after her return to port or that, except her sails, any repairs were needed or made, or that her cargo had been damaged. So, we find that when starting on her voyage a second time she was seaworthy.
Having received her sails, the sehooner made her second start on May 15 and proceeded through the Gulf without incident. But on June 21, when in the Atlantic Ocean, she encountered another storm rising to the force of a gale or hurricane. Again the schooner lost her sails. During seven days of pounding, she shipped much water, her deck seams and butts opened and let water into the hold, the steam pump refused to work for a time and the hand pumps did not keep the water from "the cargo, with the result that it suffered the damage of which the libellant complains.
Having found from the evidence that the schooner was seaworthy when first she sailed and, from the same evidence confirmed by the fact that she weathered the gulf storm without known strain, that she was staunch and strong when next she put to sea, it is evident the behavior of her hull in the ocean storm arose from something which occurred after she was well on her voyage. There is no evidence that anything had happened before the storm which contributed to the damage to the ship and her cargo. It follows that it must have been the storm to which the hull yielded. Was, therefore, the storm a “peril of the sea” within the exception of the charter party? This is always a troublesome question because a peril of the sea is not susceptible of a satisfactory, or comprehensive, definition. A storm may or may not be such a peril. The test, however, seems to be — at least it is the one we shall apply in this instance — that when a storm is of Such unusual violence that it cannot reasonably be anticipated and avoided or cannot be resisted by ordinary exertions of skill and prudence and when it has caused unusual and unexpected damage to the hull of a seaworthy vessel resulting in damage to her cargo, the loss may fairly be attributed to a peril of the sea and falls within the exception of the charter party. The Warren Adams (C. C. A.) 74 F. 413; Id., 163 U. S. 679, 16 S. Ct. 1199, 41 L. Ed. 316; The Frey (C. C. A.) 106 F. 319; The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546,15 Ann. Cas. 748; The Newport News (D. C.) 199 F. 968; 24 R. C. L. 1314. And such we are constrained to hold was the case in this marine disaster.
But the owner’s warranty of seaworthiness extends to the ship’s equipment and the owner’s duty to make her seaworthy also extends to her equipment. This rule, clearly recognized by the parties, appears in the averments of both the libel and answer. Of her- equipment that did not withstand the ocean storm were her sails. As most of these were new when she encountered that storm we imagine the libellant does not hopefully charge unseaworthiness or negligence in respect to them. It does, however, very earnestly charge unseaworthiness in respeet to the steam pump, a vital part of a ship’s equipment, saying that, “At no time on the voyage could the steam pump be made to' work.”
So, as in case of the hull, we must examine the pump at the inception of the voyage and at the time of the storm.
There is no evidence as to the condition of the steam pump on April 13 when the schooner first put to sea other than the favorable inference from the survey and classification made by the American Bureau of Shipping immediately before and testimony as to her seaworthiness in general. Entries in the ship’s log on four days before and during the gulf storm show “Lights and pumps attended to.” There are no entries or other evidence that the steam pump would not work during the gulf storm or after the schooner returned to port. It is fair to assume that on her second start the pump was in the condition the log seems to have recorded.
On the first day of the ocean storm the log shows: “Steam pump broke down.” It also discloses that on June 22, 23, 24, 27, 28 and 29 the crew worked the hand pumps. The log does not reveal when, if ever, the steam pump was repaired. In the master’s protest, however, there is an entry: “Steam pump failed to work and vessel’s pumps were worked by hand until repairs were made on steam pump.” This contradicts to some extent the libellant’s statement that “At no time on the voyage could the steam pump be made to work.” That statement is also contradicted by the cook who testified that the steam pump “choked and they cleared it.”
“Q. How long did it take to clear it? A. Didn’t take long, about an hour or two, and it was dear.
“Q. Then did your steam pump operate on the voyage after that? A. Yes, sir; our steam pump operates all times. It would be ninety days, God knows where we would have been if the pump wasn’t going.”
Yet, truly, her steam pump did not work for a time. This was because of a defect in equipment which so far as the record shows was not there before the storm. What caused it ? In the absence of evidence indicating any other probable cause we must hold it was the storm. Being violent enough to rip the sails and damage the hull we are constrained to hold that it was, equally in respect to the pump, a peril of the sea within the exception of the charter party.
The decree of the court dismissing the libel is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
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.
Alan F. McDONELL, M. Lee Curran; and Sally Phipps, Individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER; Jean Sebek; Russell Behrends and Harold Farrier, Appellants.
No. 85-1919.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1986.
Decided Jan. 12, 1987.
Rehearing and Rehearing En Banc Denied Feb. 24, 1987.
Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.
Mark W. Bennett, Des Moines, Iowa, for appellees.
Before LAY, Chief Judge, and ROSS and WOLLMAN, Circuit Judges.
ROSS, Circuit Judge.
This is a class action challenging the constitutionality of an Iowa Department of Corrections policy under 42 U.S.C. § 1983. This policy subjects the correctional institution employees to searches of their vehicles and of their persons, including urine, blood, or breath testing, upon the request of Department officials. The named plaintiffs are Alan McDonell, Lee Curran, and Sally Phipps. The certified class consists of all individuals employed by the Iowa Department of Corrections at its various institutions who are covered by the Department’s search policy.
The district court enjoined Department of Corrections officials and their agents from enforcing this search policy except in certain limited circumstances, unless the search is based upon a reasonable suspicion. We affirm the district court’s order as herein modified.
I. Facts
Plaintiff McDonell was employed as a correctional officer first at the Men’s Reformatory at Anamosa (Anamosa) and later at another correctional institution. Plaintiffs Curran and Phipps, at all times material to this action, were employed at the Iowa Correctional Institution for Women at Mitchellville (Mitchellville).
Defendant Hunter is the Superintendent and chief executive officer of Mitchellville. Defendant Sebek is the Security Director of Mitchellville, and is responsible for the implementation and enforcement of the Department’s policy. Defendant Behrends is the Acting Deputy Warden of Anamosa, and is responsible for the implementation of the Department’s policy. Defendant Farrier is Director and chief administrative officer of the Iowa Department of Corrections, and is responsible for the supervision and operations of Anamosa, Mitchellville, and other correctional institutions.
When McDonell was employed at Anamosa in 1979, he signed a consent to search form. In January 1984 the supervisory personnel at Anamosa requested McDonell to undergo urinalysis because he had been seen with individuals who were being investigated for possible drug-related activities. McDonell refused and as a result his employment was terminated. Shortly thereafter he was reinstated with loss of ten days’ pay and was transferred to another institution.
In August of 1983, employees at Mitchellville were presented a search consent form to sign. Plaintiffs Curran and Phipps refused to sign. While there was disputed evidence that these employees were told that if they did not sign, they would not receive their paychecks, they did in fact receive paychecks and they have not been discharged or disciplined for refusing to sign.
Plaintiffs sought declaratory and injunctive relief on behalf of themselves and the class they represented, claiming the policy violates the fourth amendment to the United States Constitution and plaintiffs’ constitutional right to privacy.
A preliminary injunction was issued in February 1984. On appeal it was affirmed. McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984). In July 1985, the district court issued its final order 612 F.Supp. 1122. The district court held that searches of correctional employees, including urinalyses, and of their vehicles may be made only on the basis of reasonable suspicion, with certain specified exceptions. The district court found that the policy challenged here was designed to serve security requirements at the state’s correctional facilities, but that the employees had legitimate, although diminished, expectations of privacy while in the correctional institution. The court balanced the state’s interest in security against the infringement upon the individual employee’s right to privacy and determined that reasonable suspicion, rather than probable cause, was the appropriate standard for conducting strip searches and urinalyses of employees. The district court order allows vehicle searches within the confines of the institution to be conducted uniformly or by systematic random selection. Searches of employees’ vehicles within the institution’s confines, other than uniformly or by systematic random selection were permitted only on the basis of a reasonable suspicion.
II. Searches
The fourth amendment to the United States Constitution provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The basic purpose of the fourth amendment, which is enforceable against the states through the fourteenth amendment, New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985), is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a “standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396.
A. Strip Body Searches
Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches of corrections officers based on mere suspicion. Defendants also argue that plaintiffs have no reasonable expectations of privacy within the institutions in light of their signing consent forms.
Correctional institutions are unique places “fraught with serious security dangers.” Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884. Within the walls of the correctional institution, “a central objective of prison administrators is to safeguard institutional security.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). To achieve this goal prison administrators have the responsibility “to intercept and exclude by all reasonable means all contraband smuggled into the facility.” Id.
In analyzing the intrusion on the individual’s fourth amendment interests, there must be a legitimate expectation of privacy. To determine if an individual’s expectation of privacy is legitimate, there must be both an actual subjective expectation and, even more importantly, Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984), that expectation must be one which society will accept as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
While correction officers retain certain expectations of privacy, it is clear that, based upon their place of employment, their subjective expectations of privacy are diminished while they are within the confines of the prison. Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 202 (2d Cir.1984). We believe that society is prepared to accept this expectation of privacy as reasonable although diminished “in light of the difficult burdens of maintaining safety, order and security that our society imposes on those who staff our prisons.” Id.
The Supreme Court has held that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz, supra, 389 U.S. at 357, 88 S.Ct. at 514. Exceptions have been made “where a legitimate governmental purpose makes the intrusion into privacy reasonable.” Carey, supra, 737 F.2d at 203.
In light of the legitimate governmental interest in maintaining security at correctional institutions, it is our view, as it is that of the Second Circuit, that a reasonable suspicion standard should be adopted for strip searches of correction officers while working in correctional facilities. Id. at 204. As this court stated in Hunter v. Auger, supra, “[w]e believe that this standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers.” Hunter v. Auger, supra, 672 F.2d at 674.
A reasonable suspicion standard has been upheld as the appropriate standard for conducting body searches of (1) prison visitors: Thome v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); Hunter v. Auger, supra, 672 F.2d at 674; (2) persons at the country’s borders: United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir.1978); United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978); (3) arrestees: Jones v. Edwards, 770 F.2d 739, 741 (8th Cir.1985) (strip search conducted following arrest for animal leash law violation); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985) (strip search of one arrested for minor traffic offenses); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (strip search of women arrested for misdemeanor offenses, done while women were awaiting arrival of bail money); and (4) prison guards: Security & Law Enforcement Employees, District Council 82 v. Carey, supra, 737 F.2d at 203-04; accord Armstrong v. New York State Commissioner of Corrections, 545 F.Supp. 728, 731 (N.D.N.Y.1982) (requiring “articulable facts” supporting belief that employee was concealing contraband on his person; cf. Gettleman v. Werner, 377 F.Supp. 445, 452 (W.D.Pa.1974) (reasonable suspicion found, but a federal court should “be reluctant to intervene” in prison administration matters).
The reasonable suspicion standard requires officials to base strip searches on specific objective facts and rational inferences they are entitled to, draw from those facts in light of their experience. It requires individualized suspicion specifically directed to the person who is targeted for the strip search. Hunter v. Auger, supra, 672 F.2d at 674-75. Without reasonable, articulable grounds to suspect an individual employee of secreting contraband on his person, a strip search of that employee is unreasonable under the fourth amendment. We thus affirm the district court's order regarding strip searches of correctional facility employees.
B. Urinalysis
Urinalysis has been determined to be a search and seizure within the meaning of the fourth amendment. Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986); Jones v. McKenzie, 628 F.Supp. 1500, 1508-09 (D.D.C.1986); Allen v. City of Marietta, 601 F.Supp. 482, 488-89 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1217 (S.D.N.Y.1984); In re Patchogue-Medford Congress of Teachers v. Board of Education, 119 A.D.2d 35, 505 N.Y.S.2d 888, 889 (1986); City of Palm Bay v. Bauman, 475 So.2d 1322, 1325-27 (Fla.Dist.Ct.App.1985); cf. Everett v. Napper, 632 F.Supp. 1481, 1484 (N.D.Ga.1986) (no search occurred and there was no fourth amendment violation where employee refused to take urinalysis test). In addition, the Third Circuit has implicitly held that the fourth amendment applies to urinalysis. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986).
In Allen v. City of Marietta, supra, and Capua, supra, the courts compared urine testing to the involuntary taking of a blood sample. “Though urine, unlike blood, is routinely discharged from the body so that no actual [physical] intrusion is required for its collection,” both can be “analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came.” Capua, supra, 643 F.Supp. at 1513. The Supreme Court has held that the involuntary administration of a blood test “plainly involves” the fourth amendment, which provides that “ ‘the right of the people to be secure in their persons * * * shall not be violated.’ ” (Emphasis added). Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (quoting the fourth amendment in part). We agree with those courts which have held that urinalysis is a search and seizure within the meaning of the fourth amendment.
Having determined that urinalysis is a search and seizure, we look to a balancing of “the need to search against the invasion which the search entails.” Camara, supra, 387 U.S. at 537, 87 S.Ct. at 1735. Iowa Department of Corrections officials assert a strong need to see that prison guards are not working while under the influence of drugs or alcohol. Officials argue that prison security demands that those who have contact with inmates must be alert at all times. They also urge that the use of drugs by a correction officer is some positive indication that such officer may bring drugs into the prison for the use of the inmate.
Urinalysis properly administered is not as intrusive as a strip search or a blood test. While the prison officials have the same legitimate interest in maintaining prison security discussed supra, the infringement upon the privacy interest of correctional institution employees, already diminished, is lessened. Officials have a legitimate interest in assuring that the activities of those employees who come into daily contact with inmates are not inhibited by drugs or alcohol and are fully capable of performing their duties.
In Shoemaker v. Handel, supra, the Third Circuit upheld random selection by lot for urine testing of jockeys as well as daily breathalyzer testing. The court said the state had a “strong interest in assuring the public of the integrity of the persons engaged in the horse racing industry.” Shoemaker v. Handel, supra, 795 F.2d at 1142. In approving this administrative search exception to the warrant requirement, the court looked first to a strong state interest in conducting an unannounced search and second, to a reduction in the justifiable privacy expectation of the subject of the search. Id. We believe the state’s interest in safeguarding the security of its correctional institutions is at least as strong as its interest in safeguarding the integrity of, and the public confidence in, the horse racing industry. On December 1, 1986, the Supreme Court denied certiorari in this case, — U.S.-, 107 S.Ct. 577, 93 L.Ed.2d 580.
Warrantless searches of government employees have been found reasonable where the searches were directly relevant to the employee’s performance of his duties and the government’s performance of its duties. See United States v. Blok, 188 F.2d 1019, 1021 (D.C.Cir.1951); Allen v. City of Marietta, supra, 601 F.Supp. at 489-90, and cases cited therein. We agree with the Allen court that urinalyses are not unreasonable when conducted for the purpose of determining whether corrections employees are using or abusing drugs which would affect their ability to safely perform their work within the prison, “a unique place fraught with serious security dangers.” Bell v. Wolfish, supra,- 441 U.S. at 559, 99 S.Ct. at 1884. In our opinion the use of drugs by employees who come into contact with the inmates in medium or maximum security facilities on a regular day-to-day basis poses a real threat to the security of the prison. The only way this can be controlled in a satisfactory manner is to permit limited uniform and random testing. The least intrusive method of doing so is through use of urinalyses. In our opinion it is also logical to assume that employees who use the drugs, and who come into regular contact with the prisoners, are more likely to supply drugs to the inmates, although the trial court did not agree with this observation.
Because the institutional interest in prison security is a central one, because urinalyses are not nearly so intrusive as body searches, Shoemaker v. Handel, 608 F.Supp. 1151, 1158 (D.C.N.J.1985), aff'd, 795 F.2d 1136 (3d Cir.1986), and because this limited intrusion into the guards’ expectation of privacy is, we believe, one which society will accept as reasonable, we modify the district court’s order and hold that urinalyses may be performed uniformly or by systematic random selection of those employees who have regular contact with the prisoners on a day-to-day basis in medium or maximum security prisons. Selection must not be arbitrary or discriminatory.
Urinalysis testing within the institution’s confines, other than uniformly or by systematic random selection of those employees so designated, may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience that the employee is then under the influence of drugs or alcohol or that the employee has used a controlled substance within the twenty-four hour period prior to the required test. The demand for a urine, blood, or breath specimen should be made only on the express authority of the highest officer present in the institution, and the specific, objective facts should be disclosed to the employee at the time the demand is made. Strict guidelines should be established and followed to assure confidentiality of the results of urinalysis testing. Whether the testing is on the limited random basis approved above or on the basis of reasonable suspicion, the equipment and procedure to be used must provide sufficient guarantees of trustworthiness to permit the authorities to accurately determine the presence or absence of both drugs and alcohol in the urine. The equipment and procedure to be used shall conform to those described and approved by this court in Spence v. Farrier, 807 F.2d 753 (8th Cir.1986).
The trial court limited the right to test on reasonable suspicion to those employees who are “then under the influence of alcoholic beverages or controlled substances.” We do not agree with this limitation and hold that urinalyses testing should also be permitted where there is a reasonable suspicion (as defined herein) that controlled substances have been used within the twenty-four hour period prior to the required test.
There was evidence that employees may have been asked to strip before giving a urine specimen, and there was some evidence submitted as to the reason for this requirement but it was not conclusive. We hold that the search policy should not require an employee to strip in connection with giving a urine or blood specimen. Other less intrusive measures can be taken to insure the validity of the specimen. We affirm the district court’s order as to urine, blood, or breath specimens with the modifications set forth above.
C. Vehicle Searches
The motor vehicle parking lot for employees at Mitchellville is within the area where inmates are confined. The parking lots at other correctional facilities are on property outside the area within which inmates are confined. Defendants argue that they have a significant interest in assuring that inmates do not have access to contraband hidden in vehicles.
The search of a vehicle is much less intrusive than a search of one’s person. Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542-43, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). Cases involving vehicle searches have recognized that an individual’s expectation of privacy in his vehicle is less than in other property. United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); United States v. Michael, 645 F.2d 252, 257 (5th Cir.) (en banc), cert. denied, 454 U.S. 950, 102 S.Ct. 489, 70 L.Ed.2d 257 (1981). Likewise, any expecta tion of privacy as to packages or containers within a vehicle is diminished. See United States v. Ross, 456 U.S. 798, 820 n. 26, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572 (1982). By the same balancing of individual rights against the interests of the correctional institution in maintaining security, we find that it is not unreasonable to search vehicles that are parked within the institution’s confines where they are accessible to inmates. Such searches may be conducted without cause but must be done uniformly or by systematic random selection of employees whose vehicles are to be searched. It also is not unreasonable to search on a random basis, as described supra, employees’ vehicles parked outside the institution’s confines if it can be shown that inmates have unsupervised access to those vehicles. Any other vehicle search may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the vehicle to be searched contains contraband. We believe this is reasonable in light of Hudson v. Palmer, supra, in which the Supreme Court granted prison officials “unfettered access” to prisoners’ cells as places where inmates can conceal contraband. Hudson v. Palmer, supra, 468 U.S. at 527, 104 S.Ct. at 3200. We affirm the district court’s order as to vehicle searches with the above modifications.
III. Consent Forms
Defendants argue that employees who signed consent forms have no legitimate expectation of privacy on correctional institution property.
If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926). Armstrong v. New York State Commissioner of Corrections, supra, 545 F.Supp. at 731. A legal search conducted pursuant to voluntary consent is not unreasonable and does not violate the fourth amendment. Consent must be given voluntarily and without coercion determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); United States v. Oyekan, 786 F.2d 832, 838 (8th Cir.1986). The district court here specifically made no finding as to the voluntariness of the signing of the consent forms. The district court did hold that “[ajdvance consent to future unreasonable searches is not a reasonable condition of employment.” McDonell v. Hunter, 612 F.Supp. 1122, 1131 (S.D.Ia.1985). We agree. The state may only use a consent form which delineates the rights of the employees consistent with the views of this opinion and which does not require the waiver of any of those rights.
For the above reasons, the district court’s order is affirmed as modified.
. The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.
. The policy in effect at the time of the district court's order is attached as Appendix A. The revised policy is attached as Appendix B.
. A copy of this form is attached to this opinion as Appendix C.
. A copy of this form is attached to this opinion as Appendix D.
. The district court found that there were approximately 1750 correctional institution employees of the Department who are within the certified class.
. The district court noted that, although the Department's policy as written did not expressly mention submission of blood, urine and breath samples, there was no dispute that the policy was considered to include submission of such samples. The revised version of the Department's policy does mention urinalysis and blood tests.
. The text of the district court’s order entered July 9, 1985, is included as Appendix E to this opinion.
. In describing constitutionally protected privacy interests, the Supreme Court uses the words "reasonable" and "legitimate" interchangeably. California v. Ciraolo, — U.S. -, -, 106 S.Ct. 1809, 1816 n. 4, 90 L.Ed.2d 210 (1986).
Question: What is the total number of respondents in the case? Answer with a number.
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.
BALTIMORE CONTRACTORS, INC. v. BODINGER.
No. 31.
Argued November 9, 1954.
Decided January 10, 1955.
Morris Rosenberg argued the cause for petitioner. With him on the brief was George Brussel, Jr.
Charles Wilson argued the cause and filed a brief for respondent.
Mr. Justice Reed
delivered the opinion of the Court.
The question in this case is whether an appeal may be taken to a court of appeals from a district court order refusing to stay an action for an accounting pending arbitration.
This equitable action was brought in a state court for an accounting of the profits of a joint venture in construction under the National Housing Act, and was removed to a federal district court on the basis of diversity of citizenship. Under the joint venture agreement, Baltimore Contractors agreed to pay the respondent twenty-five percent of the net profits on its construction contracts. The provision under which arbitration was sought reads as follows:
“In the event of any dispute in the calculation of the net profits under this Paragraph, Erenkil shall select either Wooden and Benson or Haskins and Sells or an accountant or auditor named by either of them whose determination of all such disputes shall be final and binding upon all parties to the dispute.”
The complaint alleged a number of improper practices on the part of Contractors: the use of “dummy” corporations to inflate costs; charges for machinery and material purchases without credits for value or surpluses after completion of the job; receipt of undisclosed rebates; excessive charges and rental for equipment; padded insurance costs, etc.
The petitioner moved for a stay of the action pursuant to § 3 of the United States Arbitration Act, 9 U. S. C. § 3, which authorizes a stay by a federal court when an issue is “referable to arbitration under an agreement in writing for such arbitration.” The District Court refused the stay on the ground that the agreement between the parties did not constitute an agreement to arbitrate. The court apparently construed the quoted provision as limited to mathematical disputes. Petitioner appealed to the Court of Appeals for the Second Circuit. On respondent’s motion the Court of Appeals dismissed the appeal, citing Morgantown v. Royal Ins. Co., 337 U. S. 254. Cer-tiorari was sought on the following question:
“Whether in an action for an accounting an interlocutory order denying a stay under Section 3 of the United States Arbitration Act should be regarded as a denial of an injunction from which an appeal lies.”
In view of the conflict between the decision below and Hudson Lumber Co. v. United States Plywood Corp., 181 F. 2d 929, we granted the petition, 347 U. S. 942.
Congress has long expressed a policy against piecemeal appeals. The reasons for such a policy were stated as follows:
“From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error, (with the single exception of a provision in the act of 1875 in relation to cases of removal, which was repealed by the act of 1887,) have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.” McLish v. Roff, 141 U. S. 661, 665-666.
Section 22 of the Judiciary Act of 1789, 1 Stat. 73, 84, provided that appeals in civil actions could be taken to the circuit courts only from final decrees and judgments. That requirement of finality has remained a part of our law ever since, and now appears as § 1291 of the Judicial Code.
The trial court’s interpretation of the quoted contract clause and its order denying a stay could not be called a final decision under § 1291. It was as surely an interlocutory order as the District Court’s order in Shanferoke Corp. v. Westchester Corp., 293 U. S. 449,451. The question here presented involves the interpretation of 28 U. S. C. § 1292 (1) which makes an exception to the requirement of finality, permitting appeals from “interlocutory orders . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” Appealability here turns on whether the District Court’s refusal to stay this trial for arbitration was the refusal of an “injunction” under § 1292.
The provision for interlocutory appeals was first introduced in 1891 when the circuit courts of appeals were established as intermediate appellate courts. 26 Stat. 826. Section 7 of that Act allowed appeals from interlocutory orders in equity “granting or continuing” injunctions, but from those only. Additions to the class of appealable interlocutory orders were made from time to time until the enactment of § 1292 in its present form. No discussion of the underlying reasons for modifying the rule of finality appears in the legislative history, although the changes seem plainly to spring from a developing need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence. When the pressure rises to a point that influences Congress, legislative remedies are enacted. The Congress is in a position to weigh the competing interests of the dockets of the trial and appellate courts, to consider the practicability of savings in time and expense, and to give proper weight to the effect on litigants. When countervailing considerations arise, interested parties and organizations become active in efforts to modify the appellate jurisdiction. This Court, however, is not authorized to approve or declare judicial modification. It is the responsibility of all courts to see that no unauthorized extension or reduction of jurisdiction, direct or indirect, occurs in the federal system. Shanferoke Corp. v. Westchester Corp., 293 U. S. 449, 451. Any such ad hoc decisions disorganize practice by encouraging attempts to secure or oppose appeals with a consequent waste of time and money. The choices fall in the legislative domain. They are enlargement of the allowable list of appealable interlocutory orders; abandonment of fragmentary appeals; or a general allowance of such appeals in the discretion of the trial judge upon findings of need, with or without the consent or approval of the appellate court.
A series of decisions of this Court has developed the rationale for determining the appealability of such an interlocutory order as this under § 1292 and its predecessors. The appealability of routine interlocutory injunctive orders raised few questions. See George v. Victor Co., 293 U. S. 377. There the statute was clear. It was when stays of proceedings, in distinction to injunctions, were appealed that the issue of jurisdiction became sharp. In Enelow v. New York Life Ins. Co., 293 U. S. 379, a case arising when federal courts had actions at law and proceedings in equity, a complaint at common law on a life insurance policy was met by an answer alleging fraud in the policy's procurement with a prayer for its cancellation and a motion to try the equitable issue first. The motion was granted, and jurisdiction on appeal from that order was approved on this reasoning:
“The power to stay proceedings in another court appertains distinctively to equity in the enforcement of equitable principles, and the grant or refusal of such a stay by a court of equity of proceedings at law is a grant or refusal of an injunction within the meaning of § 129 [§ 1292]. And, in this aspect, it makes no difference that the two cases, the suit in equity for an injunction and the action at law in which proceedings are stayed, are both pending in the same court, in view of the established distinction between ‘proceedings at law and proceedings in equity in the national courts and between the powers of those courts when sitting as courts of law and when sitting as courts of equity.’ Per Yan Devanter, J., in Griesa v. Mutual Life Ins. Co., 165 Fed. 48, 50, 51.” 293 U. S., at 382.
After the adoption of the one form, of action by the Fed. Rules Civ. Proc., 2, we reiterated this ruling in a like case. Ettelson v. Metropolitan Ins. Co., 317 U. S. 188. We said a stay of the complaint until disposition of the fraud issue “is as effective ... as an injunction .... The statute looks to the substantial effect of the order made.”
The point was made in the Eneloui case that power to stay mere steps within the framework of the litigation before a court differs as to appealability from an injunction prohibiting proceedings in another court. This distinction was applied in Morgantown v. Royal Ins. Co., 337 U. S. 254. There the insurance company brought a suit for reformation of the contract. .The insured counterclaimed, seeking to enforce the contract as written, and demanded a jury trial; the company moved to strike the demand; the court granted the motion and set the case for trial to the court without a jury. The insured appealed and the Court of Appeals dismissed the appeal. We affirmed, holding that the Enelow rule did not apply; that since this was an equitable proceeding with a counterclaim to enforce the policy, the decision to hear the reformation issue first without a jury was only a decision as to how to try the case, and therefore was not an interlocutory order in the nature of an injunction. To the argument that the importance of a jury trial justified treating the order of trial as an interlocutory injunction, we answered:
“Many interlocutory orders are equally important, and may determine the outcome of the litigation, but they are not for that reason converted into injunctions.” 337 U. S., at 258.
The Morgantown case controls here. Whether the District Court was right or wrong in its ruling that the contract provision did not require arbitration proceedings, it was simply a ruling in the only suit pending, actual or fictional. It was a mere order and not an injunction as that word is understood through the Enelow and the Ettelson cases as a stay through equitable principles of a common-law action. This present case is to be distinguished from the Shanferoke case, supra, note 5, in the same way. There in a common-law action a motion for an interlocutory injunction on an equitable defense was refused. The order was appealable under Judicial Code §129. This Court said:
“For the reasons stated in Enelow v. New York Life Ins. Co., decided this day, ante, p. 379, an order granting or denying a stay based on an equitable defense or cross-bill interposed in an action at law under § 274b, is appealable under § 129.” 293 U. S., at 452.
The reliance on the analogy of equity power to enjoin proceedings in other courts has elements of fiction in this day of one form of action The incongruity of taking jurisdiction from a stay in a law type and denying jurisdiction in an equity type proceeding springs from the persistence of outmoded procedural differentiations. Some simplification would follow from an assumption or denial of jurisdiction in both. The distinction has been applied for years, however, and we conclude that it is better judicial practice to follow the precedents which limit appealability of interlocutory orders, leaving Congress to make such amendments as it may find proper.
It is difficult to generalize as to whether interlocutory appeals are or are not advantageous to an efficient administration of justice. A compromise has been worked out by Congress through § 1292. But- that compromise does not authorize appeals to simplify litigation. This ruling was a step in controlling the litigation before the trial court, not the refusal of an interlocutory injunction.
Affirmed.
Mr. Justice Burton concurs in the judgment of the Court.
The Hudson Lumber Co. ease was a suit for a declaratory judgment as to the meaning of certain contract provisions with a prayer for incidental injunctive relief. Appeal was allowed by the Court of Appeals from the District Court order staying the trial pending resort to arbitration as required by the contract.
See Catlin v. United States, 324 U. S. 229, 233-234; United States v. Bailey, 9 Pet. 238, 273.
This enlarged the English rule for there interlocutory appeals were allowed in equity, although not at common law. 1 Holdsworth’s History of English Law 214; Crick, The Final Judgment as a Basis for Appeal, 41 Yale L. J. 539, 540-548, 551. Section 22 was rigorously enforced. Rutherford v. Fisher, 4 Dall. 22; Young v. Grundy, 6 Cranch 51. Fragmentary appeals were denounced. Canter v. American Ins. Co., 3 Pet. 307, 318; United States v. Bailey, 9 Pet. 238, 273.
28 U. S. C. §1291:
“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the District Court for the Territory of Alaska, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.”
The statutory limitation of appeals to final decisions, i. e., judgments and decrees, Ex parte Tiffany, 252 U. S. 32, 36, has called for determinations of the characteristics of finality. Stack v. Boyle, 342 U. S. 1, 6; Roberts v. U. S. District Court, 339 U. S. 844, 845; Swift & Co. v. Compania Caribe, 339 U. S. 684, 688; Cohen v. Beneficial Loan Corp., 337 U. S. 541, 546; Cogen v. United States, 278 U. S. 221. Cf. Bandini Co. v. Superior Court, 284 U. S. 8, 14 — 15; Radio Station WOW v. Johnson, 326 U. S. 120, 124; Montgomery Union v. Ledbetter Co., 344 U. S. 178. See Underwood, Appeals in the Federal Practice from Collateral Orders, 36 Va. L. Itev. 731.
The concept of finality does not require a judgment completely disposing of every matter or issue that arises in the litigation. Some collateral issues may become “so severed ... as to permit an appeal.” Cobbledick v. United States, 309 U. S. 323, 328.
Shanferoke Corp. v. Westchester Corp., 293 U. S. 449, was a suit at common law to recover damages for breach of a contract containing an arbitration clause. A motion was made to stay the suit until arbitration. The motion was denied because the trial court thought the arbitration clause applicable only to New York litigation. This Court held that the order was interlocutory and was appealable under § 129 of the Judicial Code of 1911, the predecessor of 28 U. S. C. § 1292 (1). The ruling followed Enelow v. New York Life Ins. Co., infra, p. 182.
Wilko v. Swan, 201 F. 2d 439, reversed on issues not pertinent here, 346 U. S. 427, was a suit for statutory damages. It allowed an appeal under 28 U. S. C. § 1292 to the Court of Appeals from a District Court interlocutory order refusing a stay sought pursuant to the United States Arbitration Act, 9 U. S. C. § 3. The Shanferoke case was cited.
In 1895, § 7 was amended to permit an appeal from interlocutory orders refusing or dissolving injunctions, or refusing to dissolve an injunction. 28 Stat. 666. A further amendment was made in 1900 to include certain orders in receiverships. 31 Stat. 660. This amendment had the effect of repealing the 1895 provision which was restored in § 129 of the Judicial Code of 1911. 36 Stat. 1087, 1134. See Frankfurter and Landis, The Business of the Supreme Court, 124-127. The amendment of 1925, 43 Stat. 937, made two changes: First, it embraced orders modifying or refusing to modify injunctions and expanded the number of orders in receiverships which were ap-pealable. Second, it dropped the words “in equity” from the phrase “where upon a hearing in equity in a district court” which had been employed since the initial enactment of § 7 in 1891. No change was intended by that omission. Schoenamsgruber v. Hamburg Line, 294 U. S. 454, 457, n. 3. In 1927, provision was made for interlocutory appeals in patent cases which are final save for an accounting, 44 Stat. 1261. Interlocutory appeals in bankruptcy cases are covered by § 24 of the Bankruptcy Act, 11 U. S. C. § 47.
Compare Fed. Rules Civ. Proc., 54 (b), and see Dickinson v. Petroleum Conversion Corp., 338 U. S. 507.
Statutory provisions for interlocutory appeals have been enacted in Great Britain. See the Judicature Act of 1925, Law Reports 1925 (2), 15 & 16 Geo. V, c. 49, § 31; 19 Halsbury’s Laws of England (2d ed.) 209.
See Hart and Wechsler, The Federal Courts and the Federal System, Note on Rule 54 (b) and Review of Interlocutory Orders, 1344; Proposals for Interlocutory Appeals, 58 Yale L. J. 1186. See Report of the Proceedings of the Annual Meeting of the Judicial Conference of the United States for Sept. 24-25, 1953, p. 27, Report of Committee on Enlargement of Scope of Appeals from Interlocutory Orders, with proposed amendment to § 1292. This was transmitted to Congress, 100 Cong. Rec. 1079 and 1168.
Cf. Schoenamsgruber v. Hamburg Line, 294 U. S. 454, 457, where a stay in admiralty for arbitration was held not appealable as an injunction but only an order as to the course of trial.
Cf. Moore’s Commentary on the U. S. Judicial Code, 492.
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_applfrom | E | 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).
ROSENBERG et al. v. McLAUGHLIN, Collector of Internal Revenue.
No. 6872.
Circuit Court of Appeals, Ninth Circuit.
June 19, 1933.
As Modified on Denial of Rehearing Sept. 6, 1933.
Adolphus E. Graupner, of San Francisco, Cal., for appellants.
I. M. Pockham, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal. (C. M. Charest, Gen. Counsel, and J. C. Swayze and Charles K. Hoover, Attys., Bureau of Internal Revenue, all of Washington, D. C., of counsel), for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and KERRIGAN, District Judge.
KERRIGAN, District Judge.
Appellants have sought by a bill in equity to enjoin the sale of an undivided interest in certain real property under distraint proceedings to collect a deficiency in federal estate tax. This interest was part of the estate of Isidore Rosenberg, deceased, the father of appellants, who will be hereafter referred to as the testator. The appeal is from the order granting the collector’s motion to dismiss the bill of complaint. If the collector has no right to proceed by distraint to collect the deficiency in question, appellants are entitled to injunctive relief. The issues are narrowed, and the only questions involved relate to the right of the Bureau of Internal Revenue to proceed by way of distraint under the state of facts alleged in the bill of complaint.
The testator died May 23, 1923, while the Revenue Act of 1921 (42 Stat. 227) was in force. Less than a year after his death his.widow, who was the executrix of his estate, filed an estate tax return showing a tax due of $7,791.04 a.nd paid the tax on the same day. Afterwards, and prior to the distribution of the estate, the executrix filed a claim for refund. While the claim for refund was pending, the estate was distributed. Shortly thereafter the executrix died. When it became apparent that a refund would be allowed, one of the appellants was appointed administrator with the will annexed of the testator’s estate. A refund in the sum of $4,-787.60 was paid to the administrator June 5, 1925, and distributed to the heirs. Subsequent to the effective date of the Revenue Act of 192-6, the commissioner determined a deficiency in tax against the estate in the sum of ■ $7,839.07, being $3,501.47 more than the refund and mailed to the administrator the notice required by section 308 (a) of the Revenue Act of 1926. (26 USCA § 1101.) The administrator appealed to the Board of Tax Appeals and the commissioner’s determination of the deficiency was upheld on February 27, 1929. Appeal of Rosenberg, 14 B. T. A. 1340. The commissioner on July 27,1929, assessed the additional estate tax in the full amount of the deficiency, notwithstanding the payment of the $3,501.47 by the administrator previous to the assessment. Thereafter the appellee mailed notice of distraint to the administrator for. the imp aid balance of the deficiency.
Appellants are the children of the testa^tor and his widow and are the sole heirs and distributees of the testator’s estate either in their own right or as distributees of their mother’s estate.
Appellants contend: First, that the only method by which the deficiency may be collected is by transferee proceedings under section 316 (a) of the Revenue Act of 1926 (26 USCA § 1119 (a), and, second, if the government is not restricted to that remedy, that there is no existing lien upon the property for the deficiency. The appellee contends that the transferee proceedings are an additional and alternative remedy for the collection of the tax and that there is a valid and subsisting lien on the property enforceable by distraint.
The collector was not restricted to the transferee proceedings provided by section 316 (a) of the Revenue Act of 1926 to collect a deficiency in tax against an estate which had been distributed before the determination of the deficiency, and might follow any. other valid procedure for collection. The use of the word “shall,” upon which great stress is laid by appellants, is not mandatory and does not confine the collector to a single method of procedure. A similar question of statutory interpretation was before this court in regard to section 280 (a) of the same act (26 USCA § 1069 (a), which provides for transferee proceedings to collect income taxes. In the case of Leighton v. U. S. (C. C. A.) 61 F.(2d) 530, affirmed by the Supreme Court on May 29, 1933, 53 S. Ct. 719, 77 L. Ed. -, it was contended that the collector was precluded from proceeding to collect the tax by suit in equity to impress the property in the hands of transferees with a trust by the new section, and fcould only enforce collection by means of transferee proceedings. In •that ease there was a deficiency in income tax determined against a corporation after its property had been distributed to its stockholders. Section 280 (a) is word for word the same as section 316 (a) except in so far as one deals with income tax and the other deals with estate tax. The word “shall” is used in exactly the same context in both statutes. It was held in that ease that the use of “shall” did not make the procedure mandatory, and that the remedy was not exclusive but cumulative on the authority of Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 610, 75 L. Ed. 1289, and U. S. v. Updike, 281 U. S. 489, 50 S. Ct. 367, 74 L. Ed. 984. Two quotations from the case of Phillips v. Commissioner, supra, may well be repeated here. “This remedy is in addition to proceedings to enforce the tax lien or actions at law and in equity.” Further in the opinion it is said, “The power of Congress to provide an additional remedy for the enforcement of existing liabilities is clear.” There is no valid reason for distinguishing between the two statutes and the decision in the Leigh-ton Case is conclusive upon this point.
The only remaining question is: Is there a valid and subsisting lien upon the property enforceable by distraint? If such a lien attached to the property it arose under section 409 of' the Revenue Act of 1921 (42 Stat. 283) which provided: “That unless the tax is sooner paid in full, it shall be a lien for ten years upon the gross estate of the decedent, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien. * * # ))
It is argued by the appellants that the clause “unless the tax is sooner paid in full” ¡refers to the due date of the tax as provided in section 407 of the same act, which is one year from the date of the decedent’s death; and that no lien arises until such due date. Appellants further argue that the tax in the instant ease having been returned, and the amount returned having been paid in full prior to such due date, no tax lien ever attached to the propert3’’. These contentions are not in accord with the law.
The language used in Page v. Skinner (C. C. A. 8) 298 F. 731, 732, though assailed as merely dicta, correctly states the law as to when the property is impressed with the tax lien.
“The imposition took effect at the time of death and the tax became at once a lien on the property of the estate, enforceable by sale, if not paid, on proceedings in court. N. Y. Trust Co. v. Eisner, 256 U. S. 345, 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 660.”
One test of the accrual of a tax so that the tax is saved from the effect of repealing statutes has been whether or not a lien for the tax attached to .the property before the repeal and it has been held in a line of inheritanee tax eases commencing with Hertz v. Woodman, 218 U. S. 205, 30 S. Ct. 621, 54 L, Ed. 1001, that the tax accrued or was imposed at the decedent’s death and the estate of the decedent was impressed with a lien at the same time. U. S. v. Ayer (C. C. A. 1) 12 F.(2d) 194; Crooks v. Loose (C. C. A. 8) 36 F.(2d) 571; O’Brien v. Sturgess (D. C.) 39 F.(2d) 950, affirmed (C. C. A. 3) 45 F.(2d) 1017; Ewbank v. U. S. (D. C.) 37 F.(2d) 383, affirmed (C. C. A. 7) 50 F.(2d) 409; U. S. v. Cruiksliank et al. (D. C.) 48 F.(2d) 352. The thing’ that is taxed is the transfer of the decedent’s estate upon his death. The full amount of the tax is fixed as a liability at that time as provided by the statutes ilion in force and the gross estate of the decedent is impressed with a lien for the full amount of the tax. In the light of these, principles, it is clear that the clause of said section 409, “unless the tax is sooner paid in full,” refers to the termination of the lien by payment in full during the ten-year period-mot to the imposition of the lien on the due date of the tax.
Reliance is placed upon the language used in U. S. v. Woodward, 256 U. S. 632, 41 S. Ct. 615, 65 L. Ed. 1131, to the effect that an estate tax accrues one year after death if so provided by statute, and appellants argue therefrom that there is neither liability nor lien for the tax prior to accrual. This ease was not one concerned .with the incidence of the tax. It considered the term accrual from the standpoint of permissible deduction under an income tax provision. The effect of the decision in the Woodward Case was limited to a narrow and different proposition in the ease of U. S. v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799.
Applying these principles to the instant case, it follows that a lien for the full amount of the estate tax was impressed upon the gross estate of Isidore Rosenberg at the date of his death. Since the correct amount of the tax has never been paid in full, there is a present lien upon the property for the unpaid portion of the tax. The fact that the deficiency determined included the amount of the refund does not affect our conclusions. In the case of Levy v. Commissioner (C. C. A.) 48 F.(2d) 725, in this circuit it was held that the amount of a refund might properly be included in the determination of a deficiency. We are not confronted with the same situation as in the ease of Kelley v. U. S., 30 F.(2d) 193 (C. C. A. 9), where there was no deficiency determined and the only amount claimed was that of the refund. The payment of the difference between the amount of the deficiency and that of the refund after the determination of the deficiency docs not affect the existence of the tax lien.
The collector has the right to enforce the lien by distraint and sale as provided in sections 3187 and 3188 of the Revised Statutes (26 USCA §§ 116, 117). Although these sections apply to the enforcement of general liens created under Revised Statutes, § 3186, (26 USCA § 115) they also apply to the enforcement of special liens created by other statutes. Blacklock v. U. S., 208 U. S. 75, 28 S. Ct. 228, 52 L. Ed. 396. A tax lien on property may he enforced by seizure and sale under a warrant of distraint where, at the time the lion attached, the property belonged to the person liable to pay the tax. Hartman v. Bean, 99 U. S. 393, 25 L. Ed. 455; Mansfield v. Excelsior Refinery Co., 133 U. S. 326,10 S. Ct. 825, 34 L. Ed. 162; Blacklock v. U. S., supra. For estate tax purposes, the executor or ndministiator is the person liable to pay the tax. Since the estate tax lien attaches immediately upon the death of a decedent, the property at that time may be regarded as belonging to the taxpayer, that is, the administrator or executor. Property which constituted the decedent’s estate and passed into the hands of the executor or administrator was impressed with the lien and is subject to seizure and sale.
Judgment 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_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.
CITY OF HIALEAH v. GROVES.
No. 8873.
Circuit Court of Appeals, Fifth Circuit.
Feb. 18, 1939.
Martin F. Whelan, Jr., and Mitchell D. Price, both of Miami, Fla., for appellant.
C. W. Peters, of Miami, Fla., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
Rehearing denied April 24, 1939.
HOLMES, Circuit Judge.
This appeal is from a judgment for appellee in a suit against appellant for the principal and interest alleged to be due by the City on its bonds and coupons. The declaration was in four counts, two counts being on bonds of different issues, and the other two being on coupons alleged to have been attached to the bonds. The issues tried were those raised by appellant’s plea of non est factum.
Appellee proved the special charter act upon which it relied for the authority of the municipality to issue the bonds,- together with the ordinances authorizing the two issues involved. The ordinances complied with the charter and specified the forms and amounts of the bonds to be negotiated and the officers- to act in that behalf. Appellee then proved that the bonds and coupons complied in all respects with those provided for in the ordinances, and that the signatures appearing on the bonds were genuine; that the bonds were executed by the officers named therein; and that taxes had been duly levied to raise funds to pay both issues. The proof as to the coupons was that they corresponded to the bonds as to number, amount, etc., were in the form required by the ordinance, and bore the -facsimile signatures of the executing officers. No evidence was offered by - appellant to contradict this proof; whereupon the court found the facts as above, and adjudged the issues in favor of appellee.
Three propositions are urged as grounds for reversal. They are that the evidence was insufficient, in that it did not. show, first, that the bonds had been delivered, second, that appellee was the holder in due course, and third, that the coupons were genuine, having been detached from the bonds.
The bonds are negotiable instruments payable to bearer. As such, they are subject to the provisions of the Uniform Negotiable Instruments Act, in force in the state of Florida. The section here involved (Section 6776, Compiled General Laws of Florida 1927) provides: “And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.” Delivery of the bonds is presumed until the contrary is proved; and the proof, standing uncontradicted, made a prima facie case on this issue. S. K. S. Holding Co. v. Vans Agnew, 106 Fla. 830, 143 So. 599.
Lack or want of status as a holder in due course is not a defense to a negotiable instrument payable to bearer. Its only effect would be to let in defenses against the first holder, promisee, or obligee. Where such defenses are not asserted, no such issue is raised; and proof that the plaintiff is a holder in due course is not necessary. McCallum v. Driggs, 35 Fla. 277, 17 So. 407; Jones v. Central Hanover Bank & Trust Co., 110 Fla. 69, 147 So. 895; Durham v. Meyer, 114 Fla. 594, 154 So. 702. Under the foregoing authorities, the fact that appellee produced the bonds at the trial and surrendered them in evidence was, prima facie, sufficient to characterize him as the legal holder thereof.
However, proof that the unattached coupons corresponded to the bonds and satisfied the requirements of the charter and ordinances did not sustain the burden of proving that they were the valid obligations of appellant. If they were, they became so when negotiated along with bonds to which they were attached, each bond bearing the signatures of the executing officers. Proof of the genuineness of the bonds may be made by proving the acts of the negotiating officers pursuant to their authority, and such proof is undoubtedly sufficient for the coupons attached to the bonds. But where, the coupons do not bear the signature or signatures of the officer or officers issuing them, their validity depends entirely upon whether or not they were attached to the bonds when issued.. If the coupons were actually attached to the bonds when issued, and were not attached when produced in court, then sómeone, at some intervening time, must have detached them. Information as to who-detached the coupons is not readily available to the obligor; and, in the nature of the case, it would be unjust to indulge a presumption against it. Such information is, or should be, readily available to-a holder of the bonds; and, if the genuineness of the coupons is put in issue, it should work no unusual hardship upon' him to require proof of the one vital fact upon which it depends, that 'is, that the-coupons were detached from the bonds.
It follows that the judgment of the-district court must be affirmed in so far as-it awards recovery on the bonds and all coupons attached thereto. Since there was no proof that the unattached coupons were-attached to the bonds when issued, the-judgment must be reversed as to so much of the award as was based thereon.
The judgment of the district court is. affirmed in part and reversed in part, and the cause remanded to the district court, for further proceedings not inconsistent with this opinion. The costs of this appeal shall'be assessed against appellee.
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_adminaction | 063 | 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.
SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES v. McCLURE et al.
No. 81-212.
Argued March 1, 1982
Decided April 20, 1982
Powell, J., delivered the opinion for a unanimous court.
Deputy Solicitor General Getter argued the cause for appellant. With him on the briefs were Solicitor General Lee, Edwin S. Kneedler, Lynne K. Zusman, Robert P. Jaye, and Henry Eigles.
Harvey Sohnen argued the cause for appellees. With him on the brief were Stefan M. Rosenzweig, Clifford Sweet, Sally Hart Wilson, and Gill Deford.
Briefs of amici curiae urging affirmance were filed by David R. Brink for the American Bar Association; and by Mary Ellen McCarthy for Coalition of Senior Citizens, Inc., et al.
Justice Powell
delivered the opinion of the Court.
The question is whether Congress, consistently with the requirements of due process, may provide that hearings on disputed claims for certain Medicare payments be held by private insurance carriers, without a further right of appeal.
I-H
Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. § 1395 et seq. (1976 ed. and Supp. IV), commonly known as the Medicare program, is administered by the Secretary of Health and Human Services. It consists of two parts. Part A, which is not at issue in this case, provides insurance against the cost of institutional health services, such as hospital and nursing home fees. §§ 1395c-1395i-2 (1976 ed. and Supp. IV). Part B is entitled “Supplementary Medical Insurance Benefits for the Aged and Disabled.” It covers a portion (typically 80%) of the cost of certain physician services, outpatient physical therapy, X-rays, laboratory tests, and other medical and health care. See §§ 1395k, 1395l, and 1395x(s) (1976 ed. and Supp. IV). Only persons 65 or older or disabled may enroll, and eligibility does not depend on financial need. Part B is financed by the Federal Supplementary Medical Insurance Trust Fund. See § 1395t (1976 ed. and Supp. IV). This Trust Fund in turn is funded by appropriations from the Treasury, together with monthly premiums paid by the individuals who choose voluntarily to enroll in the Part B program. See §§ 1395j, 1395r, and 1395w (1976 ed. and Supp. IV). Part B consequently resembles a private medical insurance program that is subsidized in major part by the Federal Government.
Part B is a social program of substantial dimensions. More than 27 million individuals presently participate, and the Secretary pays out more than $10 billion in benefits annually. Brief for Appellant 9. In 1980, 158 million Part B claims were processed. Ibid. In order to make the administration of this sweeping program more efficient, Congress authorized the Secretary to contract with private insurance carriers to administer on his behalf the payment of qualifying Part B claims. See 42 U. S. C. § 1395u (1976 ed. and Supp. IV). (In this case, for instance, the private carriers that performed these tasks in California for the Secretary were Blue Shield of California and the Occidental Insurance Co.) The congressional design was to take advantage of such insurance carriers’ “great experience in reimbursing physicians.” H. R. Rep. No. 213, 89th Cong., 1st Sess., 46 (1965). See also 42 U. S. C. § 1395u(a); S. Rep. No. 404, 89th Cong., 1st Sess., 53 (1965).
The Secretary pays the participating carriers’ costs of claims administration. See 42 U. S. C. § 1395u(c). In return, the carriers act as the Secretary’s agents. See 42 CFR § 421.5(b) (1980). They review and pay Part B claims for the Secretary according to a precisely specified process. See 42 CFR part 405, subpart H (1980). Once the carrier has been billed for a particular service, it decides initially whether the services were medically necessary, whether the charges are reasonable, and whether the claim is otherwise covered by Part B. See 42 U. S. C. § 1395y(a) (1976 ed. and Supp. IV); 42 CFR §405.803(b) (1980). If it determines that the claim meets all these criteria, the carrier pays the claim out of the Government’s Trust Fund—not out of its own pocket. See 42 U. S. C. §§ 1395u(a)(1), 1395u(b)(3), and 1395u(c) (1976 ed. and Supp. IV).
Should the carrier refuse on behalf of the Secretary to pay a portion of the claim, the claimant has one or more opportunities to appeal. First, all claimants are entitled to a “review determination,” in which they may submit written evidence and arguments of fact and law. A carrier employee, other than the initial decisionmaker, will review the written record de novo and affirm or adjust the original determination. 42 CFR §§ 405.807-405.812 (1980); McClure v. Harris, 503 F. Supp. 409, 411 (ND Cal. 1980). If the amount in dispute is $100 or more, a still-dissatisfied claimant then has a right to an oral hearing. See 42 U. S. C. § 1395u(b)(3)(C); 42 CFR §§ 405.820-405.860 (1980). An officer chosen by the carrier presides over this hearing. § 405.823. The hearing officers “do not participate personally, prior to the hearing [stage], in any case [that] they adjudicate.” 503 F. Supp., at 414. See 42 CFR § 405.824 (1980).
Hearing officers receive evidence and hear arguments pertinent to the matters at issue. § 405.830. As soon as practicable thereafter, they must render written decisions based on the record. § 405.834. Neither the statute nor the regulations make provision for further review of the hearing officer’s decision. See United States v. Erika, Inc., post, p. 201.
II
This case arose as a result of decisions by hearing officers against three claimants. The claimants, here appellees, sued to challenge the constitutional adequacy of the hearings afforded them. The District Court for the Northern District of California certified appellees as representatives of a nationwide class of individuals whose claims had been denied by carrier-appointed hearing officers. 503 F. Supp., at 412-414. On cross-motions for summary judgment, the court concluded that the Part B hearing procedures violated appel-lees’ right to due process “insofar as the final, unappealable decision regarding claims disputes is made by carrier appointees . . . .” Id., at 418.
The court reached its conclusion of unconstitutionality by alternative lines of argument. The first rested upon the principle that tribunals must be impartial. The court thought that the impartiality of the carrier’s hearing officers was compromised by their “prior involvement and pecuniary interest.” Id., at 414. “Pecuniary interest” was shown, the District Court said, by the fact that “their incomes as hearing officers are entirely dependent upon the carrier’s decisions regarding whether, and how often, to call upon their services.” Id., at 415. Respecting “prior involvement,” the court acknowledged that hearing officers personally had not been previously involved in the cases they decided. But it noted that hearing officers “are appointed by, and serve at the will of, the carrier [that] has not only participated in the prior stages of each case, but has twice denied the claims [that] are the subject of the hearing,” and that five out of seven of Blue Shield’s past and present hearing officers “are former or current Blue Shield employees.” Id., at 414. (Emphasis in original.) See also 42 CFR § 405.824 (1980). The District Court thought these links between the carriers and their hearing officers sufficient to create a constitutionally intolerable risk of hearing officer bias against claimants.
The District Court’s alternative reasoning assessed the costs and benefits of affording claimants a hearing before one of the Secretary’s adminstrative law judges, “either subsequent to or substituting for the hearing conducted by a carrier appointee.” 503 F. Supp., at 415. The court noted that Mathews v. Eldridge, 424 U. S. 319, 335 (1976), makes three factors relevant to such an inquiry:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Considering the first Mathews factor, the court listed three considerations tending to show that the private interest at stake was not overwhelming. The court then stated, however, that “it cannot be gainsaid” that denial of a Medicare beneficiary’s claim to reimbursement may impose “considerable hardship.” 503 F. Supp., at 416.
As to the second Mathews factor of risk of erroneous deprivation and the probable value of added process, the District Court found the record “inconclusive.” 503 F. Supp., at 416. The court cited statistics showing that the two available Part B appeal procedures frequently result in reversal of the carriers’ original disposition. But it criticized these statistics for failing to distinguish between partial and total reversals. The court stated that hearing officers were required neither to receive training nor to satisfy “threshold criteria such as having a law degree.” Ibid. On this basis it held that “it must be assumed that additional safeguards would reduce the risk of erroneous deprivation of Part B benefits.” Ibid.
On the final Mathews factor involving the Government’s interest, the District Court noted that carriers processed 124 million Part B claims in 1978. 503 F. Supp., at 416. The court stated that “[o]nly a fraction of those claimants pursue their currently-available appeal remedies,” and that “there is no indication that anything but an even smaller group of claimants will actually pursue [an] additional remedy” of appeal to the Secretary. Ibid. Moreover, the court said, the Secretary already maintained an appeal procedure using administrative law judges for appeals by Part A claimants. Increasing the number of claimants who could use this Part A administrative appeal “would not be a cost-free change from the status quo, but neither should it be a costly one.” Ibid.
Weighing the three Mathews factors, the court concluded that due process required additional procedural protection over that presently found in the Part B hearing procedure. The court ordered that the appellees were entitled to a de novo hearing of record conducted by an administrative law judge of the Social Security Administration. App. to Juris. Statement 36a. We noted probable jurisdiction, 454 U. S. 890 (1981), and now reverse.
HH tí
v í>
The hearing officers involved in this case serve in a quasi-judicial capacity, similar in many respects to that of administrative law judges. As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities. E. g., Marshall v. Jerrico, Inc., 446 U. S. 238, 242-243, and n. 2 (1980). We must start, however, from the presumption that the hearing officers who decide Part B claims are unbiased. See Withrow v. Larkin, 421 U. S. 35, 47 (1975); United States v. Morgan, 313 U. S. 409, 421 (1941). This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. See Gibson v. Berryhill, 411 U. S. 564, 578-579 (1973); Ward v. Village of Monroeville, 409 U. S. 57, 60 (1972). See also In re Murchison, 349 U. S. 133, 136 (1955) (“to perform its high function in the best way ‘justice must satisfy the appearance of justice’”) (quoting Offutt v. United States, 348 U. S. 11, 14 (1954)). But the burden of establishing a disqualifying interest rests on the party making the assertion.
Fairly interpreted, the factual findings made in this case do not reveal any disqualifying interest under the standard of our cases. The District Court relied almost exclusively on generalized assumptions of possible interest, placing special weight on the various connections of the hearing officers with the private insurance carriers. The difficulty with this reasoning is that these connections would be relevant only if the carriers themselves are biased or interested. We find no basis in the record for reaching such a conclusion. As previously noted, the carriers pay all Part B claims from federal, and not their own, funds. Similarly, the salaries of the hearing officers are paid by the Federal Government. Cf. Mar shall v. Jerrico, Inc., supra, at 245, 251. Further, the carriers operate under contracts that require compliance with standards prescribed by the statute and the Secretary. See 42 U. S. C. §§ 1395u(a)(1)(A)-(B), 1395u(b)(3), and 1395u(b) (4) (1976 ed. and Supp. IV); 42 CFR §§ 421.200, 421.202, and 421.205(a) (1980). In the absence of proof of financial interest on the part of the carriers, there is no basis for assuming a derivative bias among their hearing officers.
B
Appellees further argued, and the District Court agreed, that due process requires an additional administrative or judicial review by a Government rather than a carrier-appointed hearing officer. Specifically, the District Court ruled that “[ejxisting Part B procedures might remain intact so long as aggrieved beneficiaries would be entitled to appeal carrier appointees’ decisions to Part A administrative law judges.” 503 F. Supp., at 417. In reaching this conclusion, the District Court applied the familiar test prescribed in Mathews v. Eldridge, 424 U. S., at 335. See supra, at 193-195. We may assume that the District Court was correct in viewing the private interest in Part B payments as “considerable,” though “not quite as precious as the right to receive welfare or social security benefits.” 503 F. Supp., at 416. We likewise may assume, in considering the third Mathews factor, that the additional cost and inconvenience of providing administrative law judges would not be unduly burdensome.
We focus narrowly on the second Mathews factor that considers^the risk of erroneous decision and the probable value, if any, of the additional procedure. The District Court’s reasoning on this point consisted only of this sentence:
“In light of [appellees’] undisputed showing that carrier-appointed hearing officers receive little or no formal training and are not required to satisfy any threshold criteria such as having a law degree, it must be assumed that additional safeguards would reduce the risk of erroneous deprivation of Part B benefits.” 503 F. Supp., at 416 (footnote omitted).
Again, the record does not support these conclusions. The Secretary has directed carriers to select as a hearing officer
“ ‘an attorney or other qualified individual with the ability to conduct formal hearings and with a general understanding of medical matters and terminology. The [hearing officer] must have a thorough knowledge of the Medicare program and the statutory authority and regulations upon which it is based, as well as rulings, policy statements, and general instructions pertinent to the Medicare Bureau.’” App. 22, quoting Dept. of HEW, Medicare Part B Carriers Manual, ch. VII, p. 12-21 (1980) (emphasis added).
The District Court did not identify any specific deficiencies in the Secretary’s selection criteria. By definition, a “qualified” individual already possessing “ability” and “thorough knowledge” would not require further training. The court’s further general concern that hearing officers “are not required to satisfy any threshold criteria” overlooks the Secretary’s quoted regulation. Moreover, the District Court apparently gave no weight to the qualifications of hearing officers about whom there is information in the record. Their qualifications tend to undermine rather than to support the contention that accuracy of Part B decisionmaking may suffer by reason of carrier appointment of unqualified hearing officers.
“[D]ue Process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). We have considered appellees’ claims in light of the strong presumption in favor of the validity of congressional action and consistently with this Court’s recognition of “congressional solicitude for fair procedure . . . .” Califano v. Yamasaki, 442 U. S. 682, 693 (1979). Appellees simply have not shown that the procedures prescribed by Congress and the Secretary are not fair or that different or additional procedures would reduce the risk of erroneous deprivation of Part B benefits.
> h — I
The judgment of the District Court is reversed, and the case is remanded for judgment to be entered for the Secretary.
ordered. o CO -
Hearing officers may decide to reopen proceedings under certain circumstances. See 42 CFR §§ 405.841-405.850 (1980).
Appellee William McClure was denied partial reimbursement for the cost of an air ambulance to a specially equipped hospital. The hearing officer determined that the air ambulance was necessary, but that McClure could have been taken to a hospital closer to home. Appellee Charles Shields was allowed reimbursement for a cholecystectomy but was denied reimbursement for an accompanying appendectomy. The hearing officer reasoned that the appendectomy was merely incidental to the cholecystec-tomy. Appellee “Ann Doe” was denied reimbursement for the entire cost of a sex-change operation. The hearing officer ruled that the operation was not medically necessary.
The District Court recognized that hearing officer salaries are paid from a federal fund and not the carrier’s resources. McClure v. Harris, 503 F. Supp. 409, 415 (1980).
In this connection, the court referred to the judicial canon requiring a judge to disqualify himself from cases where a “ ‘lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter. ’ ” 503 F. Supp., at 414—415, quoting Judicial Conference of the United States, Code of Judicial Conduct, Canon 3C(l)(b). The court found that application to hearing officers of standards more lax than those applicable to the judiciary posed “a constitutionally-unacceptable risk of decisions tainted by bias.” 503 F. Supp., at 415.
Additionally, the court thought it significant that “no meaningful, specific selection criteria governed] the appointment of hearing officers” and that hearing officers were trained largely by the carriers whose decisions they were called upon to review. Ibid.
“Eligibility for Part B Medicare benefits is not based on financial need. Part B covers supplementary rather than primary services. Denial of a particular claim in a particular case does not deprive the claimant of reimbursement for other, covered, medical expenses.” Id., at 416.
“[Appellant] establishes] that between 1975 and 1978, carriers wholly or partially reversed, upon ‘review determination,’ their initial determinations in 51-57 percent of the cases considered. Of the adverse determination decisions brought before hearing officers, 42-51 percent of the carriers’ decisions were reversed in whole or in part.” Ibid.
The court added that appellees “are not entitled to further appeal or review of the Adminstrative Law Judge’s decision.” App. to Juris. Statement 36a.
The Secretary’s regulations provide for the disqualification of hearing officers for prejudice and other reasons. See 42 CFR § 405.824 (1980); App. 23-25. Appellees neither sought to disqualify their hearing officers nor presently make claims of actual bias. Tr. of Oral Arg. 34 (argument of counsel for appellees).
Before this Court, appellees urge that the Secretary himself is biased in favor of inadequate Part B awards. They attempt to document this assertion — not mentioned by the District Court — by relying on the fact that the Secretary both has helped carriers identify medical providers who allegedly bill for more services than are medically necessary and has warned carriers to control overutilization of medical services. See Brief for Appellees 17-18.
This action by the Secretary is irrelevant. It simply shows that he takes seriously his statutory duty to ensure that only qualifying Part B claims are paid. See 42 U. S. C. § 1395y(a) (1976 ed. and Supp. IV); 42 CFR § 405.803(b) (1980). It does not establish that the Secretary has sought to discourage payment of Part B claims that do meet Part B requirements. Such an effort would violate Congress’ direction. Absent evidence, it cannot be presumed.
Similarly, appellees adduced no evidence to support their assertion that, for reasons of psychology, institutional loyalty, or carrier coercion, hearing officers would be reluctant to differ with carrier determinations. Such assertions require substantiation before they can provide a foundation for invalidating an Act of Congress.
The District Court’s analogy to judicial canons, see n. 4, supra, is not apt. The fact that a hearing officer is or was a carrier employee does not create a risk of partiality analogous to that possibly arising from the professional relationship between a judge and a former partner or associate.
We simply have no reason to doubt that hearing officers will do their best to obey the Secretary’s instruction manual:
“ ‘The individual selected to act in the capacity of [hearing officer] must not have been involved in any way with the determination in question and neither have advised nor given consultation on any request for payment which is a basis for the hearing. Since the hearings are of a nonadversary nature, be particularly responsive to the needs of unrepresented parties and protect the claimant’s rights, even if the claimant is represented by counsel. The parties’ interests must be safeguarded to the full extent of their rights; in like manner, the government’s interest must be protected. “ ‘The [hearing officer] should conduct the hearing with dignity and exercise necessary control and order. . . . The [hearing officer] must make independent and impartial decisions, write clear and concise statements of facts and law, secure facts from individuals without causing unnecessary friction, and be objective and free of any influence which might affect impartial judgment as to the facts, while being particularly patient with older persons and those with physical or mental impairments.
“ ‘The [hearing officer] must be cognizant of the informal nature of a Part B hearing .... The hearing is nonadversary in nature in that neither the carrier nor the Medicare Bureau is in opposition to the party but is interested only in seeing that a proper decision is made.’” App. 22, 31-32, quoting Dept. of HEW, Medicare Part B Carriers Manual, ch. XII, pp. 12-21, 12-29 (1980). Cf. Richardson v. Perales, 402 U. S. 389, 403 (1971) (“congressional plan” is that social security administrative system will operate essentially “as an adjudicator and not as an advocate or adversary”).
The claim determination and appeal process available for Part A claims differs from the Part B procedure. See generally 42 CFR part 405, sub-part G (1980), as amended, 45 Fed. Reg. 73932-73933 (1980). See also United States v. Erika, Inc., post, at 206-207, and nn. 8 and 9.
No authoritative factual findings were made, and perhaps this conclusion would have been difficult to prove. It is known that in 1980 about 158 million Part B claims — up from 124 million in 1978 — were filed. Even though the additional review would be available only for disputes in excess of $100, a small percentage of the number of claims would be large in terms of number of cases.
The District Court’s opinion may be read as requiring that hearing officers always be attorneys. Our cases, however, make clear that due process does not make such a uniform requirement. See Vitek v. Jones, 445 U. S. 480, 499 (1980) (Powell, J., concurring in part); Parham v. J. R., 442 U. S. 584, 607 (1979); Morrissey v. Brewer, 408 U. S. 471, 486, 489 (1972). Cf. Goldberg v. Kelly, 397 U. S. 254, 271 (1970). Neither the District Court in its opinion nor the appellees before us make a particularized showing of the additional value of a law degree in the Part B context.
The record contains information on nine hearing officers. Two were retired administrative law judges with 15 to 18 years of judging experience, five had extensive experience in medicine or medical insurance, one had been a practicing attorney for 20 years, and one was an attorney with 42 years’ experience in the insurance industry who was self-employed as an insurance adjuster. Record, App. to Defendants’ Reply to Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Summary Judgment 626, 661-662, 682-685.
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: |
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.
AMERICAN SOCIETY OF MECHANICAL ENGINEERS, INC. v. HYDROLEVEL CORP.
No. 80-1765.
Argued January 13, 1982
Decided May 17, 1982
Blackmun, J., delivered the opinion of the Court, in which BRENNAN, Marshall, Stevens, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in the judgment, post, p. 578. Powell, J., filed a dissenting opinion, in which White and Rehnquist, JJ., joined, post', p. 578.
Harold R. Tyler, Jr., argued the cause for petitioner. With him on the briefs were Richard D. Parsons, Frederick T. Davis, and Steven C. Charen.
Carl W. Schwarz argued the cause for respondent. With him on the brief were Stephen P. Murphy and William H. Barrett.
Deputy Solicitor General Shapiro argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Lee, Assistant Attorney General Baxter, Barry Grossman, and Ernest J. Isenstadt.
Briefs of amici curiae urging reversal were filed by Michael D. Brown for the American Association of Engineering Societies, Inc.; by Lewis H. Van Dusen, Jr., for the American Society for Testing and Materials; by Robert J. Siverd for the Institute of Electrical and Electronics Engineers, Inc.; by David Crump for the Legal Foundation of America; and by Daniel J. Piliero II for the National Fire Protection Association.
Merle L. Royce and James P. Chapman filed a brief for ECOS Electronic Corp. as amicus curiae urging affirmance.
Briefs of amici curiae were filed by Henry A. Field, Jr., for Adolph J. Ackerman; and by Kim Zeitlin for the National Commission for Health Certifying Agencies.
Justice Blackmun
delivered the opinion of the Court.
Petitioner, the American Society of Mechanical Engineers, Inc. (ASME), is a nonprofit membership corporation organized in 1880 under the laws of the State of New York. This case presents the important issue of the Society’s civil liability under the antitrust laws for acts of its agents performed with apparent authority. Because the judgment of the Court of Appeals upholding civil liability is consistent with the central purposes of the antitrust laws, we affirm that judgment.
I
ASME has over 90,000 members drawn from all fields of mechanical engineering. It has an annual operating budget of over $12 million. It employs a full-time staff, but much of its work is done through volunteers from industry and government. The Society engages in a number of activities, such as publishing a mechanical engineering magazine and conducting educational and research programs.
In addition, ASME promulgates and publishes over 400 separate codes and standards for areas of engineering and industry. These codes, while only advisory, have a powerful influence: federal regulations have incorporated many of them by reference, as have the laws of most States, the ordinances of major cities, and the laws of all the Provinces of Canada. See Brief for Petitioner 2. Obviously, if a manufacturer’s product cannot satisfy the applicable ASME code, it is at a great disadvantage in the marketplace.
Among ASME’s many sets of standards is its Boiler and Pressure Vessel Code. This set, like ASME’s other codes, is very important in the affected industry; it has been adopted by 46 States and all but one of the Canadian Provinces. See id., at 5. Section IV of the code sets forth standards for components of heating boilers, including “low-water fuel cutoffs.” If the water in a boiler drops below a level sufficient to moderate the boiler’s temperature, the boiler can “dry fire” or even explode. A low-water fuel cutoff does what its name implies: when the water in the boiler falls below a certain level, the device blocks the flow of fuel to the boiler before the water level reaches a dangerously low point. To prevent dry firing and boiler explosions, ¶ HG-605 of Section IV provides that each boiler “shall have an automatic low-water fuel cutoff so located as to automatically cut off the fuel supply when the surface of the water falls to the lowest visible part of the water gage glass.” Plaintiffs Exhibit 30A. See 635 F. 2d 118, 121 (CA2 1980).
For some decades, McDonnell & Miller, Inc. (M&M), has dominated the market for low-water fuel cutoffs. But in the mid-1960’s, respondent Hydrolevel Corporation entered the low-water fuel cutoff market with a different version of this device. The relevant distinction, for the purposes of this case, was that Hydrolevel’s fuel cutoff, unlike M&M’s, included a time delay.
In early 1971, Hydrolevel secured an important customer. Brooklyn Union Gas Company, which had purchased M&M’s product for several years, decided to switch to Hydrolevel’s probe. Not surprisingly, M&M was concerned.
Because of its involvement in ASME, M&M was in an advantageous position to react to Hydrolevel’s challenge. ASME’s governing body had delegated the interpretation, formulation, and revision of the Boiler and Pressure Vessel Code to a Boiler and Pressure Vessel Committee. See App. 120. That committee in turn had authorized subcommittees to respond to public inquiries about the interpretation of the code. An M&M vice president, John W. James, was vice chairman of the subcommittee which drafted, revised, and interpreted Section IV, the segment of the Boiler and Pressure Vessel Code governing low-water fuel cutoffs.
After Hydrolevel obtained the Brooklyn Union Gas account, James and other M&M officials met with T. R. Hardin, the chairman of the Section IV subcommittee. The participants at the meeting planned a course of action. They decided to send an inquiry to ASME’s Boiler and Pressure Vessel Committee asking whether a fuel cutoff with a time delay would satisfy the requirements of ¶ HG-605 of Section IV. James and Hardin, as vice chairman and chairman, respectively, of the relevant subcommittee, cooperated in drafting a letter, one they thought would elicit a negative response.
The letter was mailed over the name of Eugene Mitchell, an M&M vice president, to W. Bradford Hoyt, secretary of the Boiler and Pressure Vessel Committee and a full-time ASME employee. App. 62. Following ASME’s standard routine, Hoyt referred the letter to Hardin, as chairman of the subcommittee. Under the procedures of the Boiler and Pressure Vessel Committee, the subcommittee chairman— Hardin — could draft a response to a public inquiry without referring it to the entire subcommittee if he treated it as an “unofficial communication.”
As a result, Hardin, one of the very authors of the inquiry, prepared the response. Id., at 63. Although he retained control over the inquiry by treating the response as “unofficial,” the response was signed by Hoyt, secretary of the Boiler and Pressure Vessel Committee, and it was sent out on April 29, 1971, on ASME stationery. Id., at 64. Predictably, Hardin’s prepared answer, utilized verbatim in the Hoyt letter, condemned fuel cutoffs that incorporated a time delay:
“A low-water fuel cut-off is considered strictly as a safety device and not as some kind of an operating control. Assuming that the water gage glass is located in accordance with the requirements of Par. HG-602(b), it is the intent of Par. HG-605(a) that the low-water fuel cut-off operate immediately and positively when the boiler water level falls to the lowest visible part of the water gage glass.
“There are many and varied designs of heating boilers. If a time delay feature were incorporated in a low-water fuel cut-off, there would be no positive assurance that the boiler water level would not fall to a dangerous point during a time delay period.” Ibid.
As the Court of Appeals in this case observed, the second paragraph of the response does not follow from the first: “If the cut-off is positioned sufficiently above the lowest permissible water level, a cut-off with a time-delay could assure, even allowing for the delay, that the fuel supply would stop by the time the water fell to the lowest visible part of the water-gauge glass.” 685 F. 2d, at 122-123. Hoyt signed and mailed the response without checking its accuracy. See App. 124-126.
As anticipated, M&M seized upon this interpretation of Section IV to discourage customers from buying Hydrolevel’s product. It instructed its salesmen to tell potential customers that Hydrolevel’s fuel cutoff failed to satisfy ASME’s code. See 635 F. 2d, at 123. And M&M’s employees did in fact carry the message of the subcommittee’s response to customers interested in buying fuel cutoffs. Thus, M&M successfully used its position within ASME in an effort to thwart Hydrolevel’s competitive challenge.
Several months later, Hydrolevel learned of the subcommittee interpretation from a former customer. Hydro-level wrote ASME for a copy of the April 29 response. On February 8, 1972, over the signature of the assistant secretary of the Boiler and Pressure Vessel Committee, ASME sent Hydrolevel a letter quoting the two paragraphs of the April 29 interpretation of Section IV. App. 66-67.
On March 23, Hydrolevel’s president wrote Hoyt and demanded that ASME cure the effect of the April 29 letter by sending a correction to whomever might have received it. Id., at 68-73. Hoyt placed Hydrolevel’s complaint on the agenda for the meetings of the Boiler and Pressure Vessel Committee and Subcommittee to be held on May 4 and 5.
On May 4, the subcommittee voted to confirm the intent of the first quoted paragraph of the April 29 letter. James, by then the chairman of the subcommittee, reported this recommendation to the committee on May 5. Id., at 82. Thereafter, the committee designated two persons to propose a response to Hydrolevel. Id., at 83. In the end, on June 9 the committee mailed Hydrolevel a reply that “confirmed the intent” of the April 29 letter. Id., at 84. The committee’s letter further advised that there was
“no intent in Section IV to prohibit the use of low water fuel cutoffs having time delays in order to meet the requirements of Par. HG-605(a). This paragraph relates itself to Par. HG-602(b) which specifically delineates the location of the lowest visible part of the water gage glass.” Ibid.
The committee concluded the letter with a warning paragraph suggested by James, see id., at 111-112:
“If a means for retarding control action is incorporated in a low-water fuel cutoff, the termination of the retard function must operate to cutoff the fuel supply before the boiler water level falls below the visible part of the water gage glass.” Id., at 84.
After this response to its complaint, Hydrolevel continued to suffer from market resistance. Two years later, the Wall Street Journal published an article describing Hydrolevel’s predicament in trying to sell a fuel cutoff that many in the industry thought to be in violation of ASME’s code. Wall Street Journal, July 9, 1974, p. 44, col. 1; App. 94-98. Reacting to this story, ASME’s Professional Practice Committee opened an investigation. It never discovered that James had been involved with the original inquiry. In a resolution reporting the results of its investigation, the committee decided that all ASME officials had acted properly. Further, the Professional Practice Committee “commend[ed] [James] for conducting himself in a forthright manner.” Id., at 104.
Subsequently, James’ part in drafting the original letter of inquiry became public because of his testimony in March 1975 before a Senate Subcommittee. See Voluntary Industrial Standards: Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 186-199 (1975) (testimony of John W. James of M&M (ITT)); see also id., at 171-185 (testimony of Eugene Mitchell, Manager of Original Equipment Sales, ITT Fluid Handling Division). Within a few months, Hydrolevel filed suit against ITT, ASME, and Hartford in the United States District Court for the Eastern District of New York. Hydrolevel alleged that the defendants’ actions had violated §§ 1 and 2 of the Sherman Act, 15 U. S. C. §§ 1 and 2. App. 11. Prior to trial, Hydrolevel sold all its assets, except this suit, for salvage value. Ultimately, ITT and Hartford settled.
The lawsuit proceeded to trial against ASME, as the remaining defendant. Hydrolevel requested the trial court to instruct the jury that ASME could be held liable under the antitrust laws for its agents’ conduct if the agents acted within the scope of their apparent authority. See id., at 59. The District Court, however, rejected this approach and, instead, at ASME’s suggestion, charged the jury that ASME could be held liable only if it had ratified its agents’ actions or if the agents had acted in pursuit of ASME’s interests. The District Court explained to the jury:
“If the officers or agents act on behalf of interests adverse to the corporation or acted for their own economic benefit or the benefit of another person or corporation, and this action was not ratified or adopted by the defendant [ASME], their misconduct cannot be considered that of the corporation with which they are associated.” Id., at 49.
The jury, nonetheless, returned a verdict for Hydrolevel.
Before the Court of Appeals, the parties disputed the sufficiency of the evidence to support a verdict based on the District Court’s instruction. See 635 F. 2d, at 125. But the Court of Appeals chose not to decide whether the evidence was sufficient to demonstrate that ASME had ratified its agents’ actions or that the agents had acted to advance ASME’s interests. Instead, after surveying the law of agency and the policies underlying the antitrust laws, the Court of Appeals concluded that ASME could be held liable if its agents had acted within the scope of their apparent authority. Id., at 124-127. Since, therefore, the District Court had delivered “a charge that was more favorable to the defendant than the law requires,” id., at 127, the Court of Appeals affirmed the judgment on liability, that is, the jury’s finding that ASME was liable under § 1 of the Sherman Act for its agents’ actions.
Because the Court of Appeals’ decision presents an important issue concerning the interpretation of the antitrust laws, we granted certiorari. 452 U. S. 937 (1981).
HH HH
A
As the Court of Appeals observed, under general rules of agency law, principals are liable when their agents act with apparent authority and commit torts analogous to the antitrust violation presented by this case. See generally 10 W. Fletcher, Cyclopedia of the Law of Private Corporations ¶ 4886, pp. 400—401 (rev. ed. 1978); W. Seavey, Law of Agency § 92 (1964). For instance, a principal is liable for an agent’s fraud though the agent acts solely to benefit himself, if the agent acts with apparent authority. See, e. g., Standard Surety & Casualty Co. v. Plantsville Nat. Bank, 158 F. 2d 422 (CA2 1946), cert. denied, 331 U. S. 812 (1947). Similarly, a principal is liable for an agent’s misrepresentations that cause pecuniary loss to a third party, when the agent acts within the scope of his apparent authority. Restatement (Second) of Agency §§ 249, 262 (1957) (Restatement); see Rutherford v. Rideout Bank, 11 Cal. 2d 479, 80 P. 2d 978 (1938). Also, if an agent is guilty of defamation, the principal is liable so long as the agent was apparently authorized to make the defamatory statement. Restatement §§ 247, 254. Finally, a principal is responsible if an agent acting with apparent authority tortiously injures the business relations of a third person. Id., § 248 and Comment b, p. 548.
Under an apparent authority theory, “[liability is based upon the fact that the agent’s position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.” Id., § 261, Comment a, p. 571. See Record v. Wagner, 100 N. H. 419, 128 A. 2d 921 (1957). As with the April 29 letter issued by the Boiler and Pressure Vessel Subcommittee, the injurious statements are “effective, in part at least, because of the personality of the one publishing it.” Restatement § 247, Comment c, p. 545. In other words, “one who appears to have authority to make statements for the [principal] gives to his statements the weight of the [principal’s] reputation,” ibid. — in this case, the weight of ASME’s acknowledged expertise in boiler safety. See generally W. Prosser, Law of Torts 467 (4th ed. 1971).
ASME’s system of codes and interpretative advice would not be effective if the statements of its agents did not carry with them the assurance that persons in the affected industries could reasonably rely upon their apparent trustworthiness. Behind the principal’s liability under an apparent authority theory, then, is “business expediency — the desire that third persons should be given reasonable protection in dealing with agents.” Restatement § 262, Comment a, p. 572. See Ricketts v. Pennsylvania R. Co., 153 F. 2d 757 (CA2 1946). The apparent authority theory thus benefits both ASME and the public whom ASME attempts to serve through its codes: “It is... for the ultimate interest of persons employing agents, as well as for the benefit of the public, that persons dealing with agents should be able to rely upon apparently true statements by agents who are purporting to act and are apparently acting in the interests of the principal.” Restatement § 262, Comment a, p. 572.
The apparent authority theory has long been the settled rule in the federal system. See Ricketts v. Pennsylvania R. Co., 153 F. 2d, at 759. In Friedlander v. Texas & Pacific R. Co., 130 U. S. 416 (1889), the Court held that an employer was not liable for the fraud of his agent, when the employer could derive no benefit from the agent’s fraud. But Gleason v. Seaboard Air Line R. Co., 278 U. S. 349 (1929), discarded that rule. In Gleason, a railroad’s employee sought to enrich himself by defrauding a customer of the railroad through a forged bill of lading. The Court of Appeals had absolved the railroad from liability because the employee perpetrated the fraud solely for his own benefit. But this Court reversed, overruling Friedlander. 278 U. S., at 357. Noting that “there was... no want of authority in the agent,” id., at 355, the Court held the railroad liable despite the agent’s desire to benefit only himself. It explained that “few doctrines of the law are more firmly established or more in harmony with accepted notions of social policy than that of the liability of the principal without fault of his own.” Id., at 356.
In a wide variety of areas, the federal courts, like this Court in Gleason, have imposed liability upon principals for the misdeeds of agents acting with apparent authority. See, e. g., Dark v. United States, 641 F. 2d 805 (CA9 1981) (federal tax liability); National Acceptance Co. v. Coal Producers Assn., 604 F. 2d 540 (CA7 1979) (common-law fraud); Holloway v. Howerdd, 536 F. 2d 690 (CA6 1976) (federal securities fraud); United States v. Sanchez, 521 F. 2d 244 (CA5 1975) (bail bond fraud), cert. denied, 429 U. S. 817 (1976); Kerbs v. Fall River Industries, Inc., 502 F. 2d 731 (CA10 1974) (federal securities fraud); Gilmore v. Constitution Life Ins. Co., 502 F. 2d 1344 (CA10 1974) (common-law fraud).
In the past, the Court has refused to permit broad common-law barriers to relief to constrict the antitrust private right of action. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134 (1968). It stated there that “the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat” to deter antitrust violations. Id., at 139. In Perma Life Mufflers, the Court honored that purpose by denying defendants the right to invoke a common-law defense (the doctrine of in pari delicto) that was inconsistent with the antitrust laws. In this case, we can honor the statutory purpose best by interpreting the antitrust private cause of action to be at least as broad as a plaintiff’s right to sue for analogous torts, absent indications that the antitrust laws are not intended to reach so far. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 639 (1981); Perma Life Mufflers, 392 U. S., at 138. Our remaining inquiry, then, is whether ASME’s liability under a theory of apparent authority is consistent with the intent behind the antitrust laws.
B
We hold that the apparent authority theory is consistent with the congressional intent to encourage competition. ASME wields great power in the Nation’s economy. Its codes and standards influence the policies of numerous States and cities, and, as has been said about “so-called voluntary standards” generally, its interpretations of its guidelines “may result in economic prosperity or economic failure, for a number of businesses of all sizes throughout the country,” as well as entire segments of an industry. H. R. Rep. No. 1981, 90th Cong., 2d Sess., 75 (1968). ASME can be said to be “in reality an extra-governmental agency, which prescribes rules, for the regulation and restraint of interstate commerce.” Fashion Originators’ Guild of America, Inc. v. FTC, 312 U. S. 457, 465 (1941). When it cloaks its subcommittee officials with the authority of its reputation, ASME permits those agents to affect the destinies of businesses and thus gives them the power to frustrate competition in the marketplace.
The facts of this case dramatically illustrate the power of ASME’s agents to restrain competition. M&M instigated the submission of a single inquiry to an ASME subcommittee. For its efforts, M&M secured a mere “unofficial” response authored by a single ASME subcommittee chairman. Yet the force of ASME’s reputation is so great that M&M was able to use that one “unofficial” response to injure seriously the business of a competitor.
Furthermore, a standard-setting organization like ASME can be rife with opportunities for anticompetitive activity. Many of ASME’s officials are associated with members of the industries regulated by ASME’s codes. Although, undoubtedly, most serve ASME without concern for the interests of their corporate employers, some may well view their positions with ASME, at least in part, as an opportunity to benefit their employers. When the great influence of ASME’s reputation is placed at their disposal, the less altruistic of ASME’s agents have an opportunity to harm their employers’ competitors through manipulation of ASME’s codes.
Again, the facts of this case are illustrative. Hardin was able to issue an interpretation of ASME’s Boiler and Pressure Vessel Code which in effect declared Hydrolevel’s product unsafe. Hardin’s interpretation of the code was sent out under Hoyt’s name as secretary of the committee, though Hoyt exercised only ministerial duties and played no role in confirming the substance of the April 29, 1971, letter. See App. 125-126. Thus, without any meaningful safeguards, ASME entrusted the interpretation of one of its codes to Hardin. As a result, M&M was able to use ASME’s reputation to hinder Hydrolevel’s competitive threat.
A principal purpose of the antitrust private cause of action, see 15 U. S. C. § 15, is, of course, to deter anticompetitive practices. Pfizer Inc. v. Government of India, 434 U. S. 308, 314 (1978); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S., at 139; see Reiter v. Sonotone Corp., 442 U. S. 330, 342-344 (1979). It is true that imposing liability on ASME’s agents themselves will have some deterrent effect, because they will know that if they violate the antitrust laws through their participation in ASME, they risk the consequences of personal civil liability. But if, in addition, ASME is civilly liable for the antitrust violations of its agents acting with apparent authority, it is much more likely that similar antitrust violations will not occur in the future. “[Pressure [will be] brought on [the organization] to see to it that [its] agents abide by the law.” United States v. A & P Trucking Co., 358 U. S. 121, 126 (1958). Only ASME can take systematic steps to make improper conduct on the part of all its agents unlikely, and the possibility of civil liability will inevitably be a powerful incentive for ASME to take those steps. Thus, a rule that imposes liability on the standard-setting organization — which is best situated to prevent antitrust violations through the abuse of its reputation — is most faithful to the congressional intent that the private right of action deter antitrust violations.
The wisdom of the apparent authority rule becomes evident when it is compared to the alternative approaches advanced by the District Court’s instructions to the jury, see supra, at 564-565, and advocated by ASME. First, ASME insists that it should not be held liable unless it ratified the actions of its agents. But a ratification rule would have anti-competitive effects, directly contrary to the purposes of the antitrust laws. ASME could avoid liability by ensuring that it remained ignorant of its agents’ conduct, and the antitrust laws would therefore encourage ASME to do as little as possible to oversee its agents. Thus, ASME’s ratification theory would actually enhance the likelihood that the Society’s reputation would be used for anticompetitive ends.
Second, ASME contends that it should not be held liable unless its agents act with an intent to benefit the Society. This proposed rule falls short, though, because it is simply irrelevant to the purposes of the antitrust laws. Whether they intend to benefit ASME or not, ASME’s agents exercise economic power because they act with the force of the Society’s reputation behind them. And, whether they act in part to benefit ASME or solely to benefit themselves or their employers, ASME’s agents can have the same anticompetitive effects on the marketplace. The anticompetitive practices of ASME’s agents are repugnant to the antitrust laws even if the agents act without any intent to aid ASME, and ASME should be encouraged to eliminate the anticompetitive practices of all its agents acting with apparent authority, especially those who use their positions in ASME solely for their own benefit or the benefit of their employers.
C
Finally, ASME makes two additional arguments in an attempt to avoid antitrust liability. It characterizes treble damages for antitrust violations as punitive, and urges that under traditional agency law the courts do not employ apparent authority to impose punitive damages upon a principal for the acts of its agents. See Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101 (1893); United States v. Ridglea State Bank, 357 F. 2d 495 (CA5 1966); see also Restatement § 217C. It is true that antitrust treble damages were designed in part to punish past violations of the antitrust laws. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S., at 639. But treble damages were also designed to deter future antitrust violations. Ibid. Moreover, the antitrust private action was created primarily as a remedy for the victims of antitrust violations. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977); see Illinois Brick Co. v. Illinois, 431 U. S. 720, 746-747 (1977). Treble damages “make the remedy meaningful by counterbalancing ‘the difficulty of maintaining a private suit’ ” under the antitrust laws. Brunswick Corp., supra, at 486, n. 10, quoting 21 Cong. Rec. 2456 (1890) (remarks of Sen. Sherman). Since treble damages serve as a means of deterring antitrust violations and of compensating victims, it is in accord with both the purposes of the antitrust laws and principles of agency law to hold ASME liable for the acts of agents committed with apparent authority. See Restatement § 217C, Comment c, p. 474 (rule limiting principal’s liability for punitive damages does not apply to special statutes giving triple damages).
In addition, ASME contends it should not bear the risk of loss for antitrust violations committed by its agents acting with apparent authority because it is a nonprofit organization, not a business seeking profit. But it is beyond debate that nonprofit organizations can be held liable under the antitrust laws. See, e. g., Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U. S. 656 (1961); Associated Press v. United States, 326 U. S. 1 (1945). Although ASME may not operate for profit, it does derive benefits from its codes, including the fees the Society receives for its code-related publications and services, the prestige the codes bring to the Society, the influence they permit ASME to wield, and the aid the standards provide the profession of mechanical engineering. Since the antitrust violation in this ¿ase could not have occurred without ASME’s codes and ASME’s method of administering them, it is not unfitting that ASME be liable for the damages arising from that violation. See W. Prosser, Law of Torts 459 (4th ed. 1971); W. Seavey, Law of Agency § 83 (1964). Furthermore, as shown above, ASME is in the best position to take precautions that will prevent future antitrust violations. Thus, the fact that ASME is a nonprofit organization does not weaken the force of the antitrust and agency principles that indicate that ASME should be liable for Hydrolevel’s antitrust injuries.
h — i HH
We need not delineate today the outer boundaries of the antitrust liability of standard-setting organizations for the actions of their agents committed with apparent authority. There is no doubt here that Hardin acted within his apparent authority when he answered an inquiry about ASME’s Boiler and Pressure Vessel Code as the chairman of the relevant ASME subcommittee. And in this case, we do not face a challenge to a good-faith interpretation of an ASME code reasonably supported by health or safety considerations. See Silver v. New York Stock Exchange, 373 U. S. 341 (1963). We have no difficulty in finding that this set of facts falls well within the scope of ASME’s liability on an apparent authority theory.
When ASME’s agents act in its name, they are able to affect the lives of large numbers of people and the competitive fortunes of businesses throughout the country. By holding ASME liable under the antitrust laws for the antitrust violations of its agents committed with apparent authority, we recognize the important role of ASME and its agents in the economy, and we help to ensure that standard-setting organizations will act with care when they permit their agents to speak for them. We thus make it less likely that competitive challengers like Hydrolevel will be hindered by agents of organizations like ASME in the future.
The judgment of the Court of Appeals is affirmed.
So ordered.
M&M’s fuel cutoff is a floating bulb that falls with the boiler’s water level. When the level reaches the critical point, the bulb causes a switch to cut off the boiler’s fuel supply. Hydrolevel’s product, in contrast, was an immovable probe inserted in the side of the boiler; when the water level dropped below the probe, the fuel supply was interrupted. Because water in a boiler surges and bubbles, the level intermittently would seem to fall slightly below the probe even though the overall level remained safe. To prevent premature fuel cutoff because of these intermittent fluctuations, Hydrolevel’s probe included a time delay that allowed the boiler to operate for a brief period after the water level dropped beneath the probe.
Hardin was an executive vice president of Hartford Steam Boiler Inspection and Insurance Company. A controlling interest in Hartford was owned by International Telephone and Telegraph Corporation, which acquired M&M within the year. See 635 F. 2d 118, 122, n. 2 (CA2 1980).
Actually, the committee “confirmed the intent” of ASME’s February 8, 1972, letter to Hydrolevel. That letter, however, simply quoted the original April 29, 1971, response. See App. 66-67.
The Court of Appeals remanded the case to the District Court after finding that the damages awarded Hydrolevel were excessive and that the District Court had made errors in its calculation of damages. 635 F. 2d, at 128-131. The damages issue is the subject of a pending cross-petition for certiorari, No. 80-1771, filed April 22, 1981. Hydrolevel’s damages arguments are not now before us, and we express no opinion on that aspect of the Court of Appeals’ decision.
“Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” Restatement (Second) of Agency § 8 (1957).
The dissent delves into the agency law of the late 19th century and concludes that “it was far from clear” that a principal could be held liable for the deliberate torts of his agent. Post, at 587. But in fact, while there was a division of authority, many courts had made it very clear that principals could be held liable for torts analogous to the antitrust violations committed by ASME’s agents.
For instance, a treatise of that era noted that a “considerable number of American courts” had held the principal liable for the agent’s fraud, though the agent acted solely for his own benefit, and praised a leading opinion for its “singular ability and lucidity.” E. Huffcut, Elements of the Law of Agency § 155, p. 168 (1895). Indeed, the author commented that the cases holding a principal liable when his agent acted with apparent authority and for the agent’s sole benefit were “too various to be referred to in detail.” Id., §157.
In holding a telegraph company liable for the fraud of its agent committed solely for his personal benefit, one court summarized the reasoning that became widespread during the last half of the 19th century: “Persons receiving dispatches in the usual course of business, when there is nothing to excite suspicion, are entitled to rely upon the presumption that the agents intrusted with the performance of the business of the company have faithfully and honestly discharged the duty owed by it to its patrons, and that they would not knowingly send a false or forged message.” McCord v. Western Union Tel. Co., 39 Minn. 181, 185, 39 N. W. 315, 317 (1888). See, e. g., Bank of Batavia v. New York, L. E. & W. R. Co., 106 N. Y. 195, 12 N. E. 433 (1887).
Thus, based on the agency law of the late 19th century, there is ample support for holding ASME liable, particularly since Congress intended
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_appnatpr | 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.
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.
Kenneth GARRISON and Dorothy Garrison, Plaintiffs-Appellants, v. HEUBLEIN, INC., d/b/a Ste Pierre Smirnoff FLS, Defendant-Appellee.
No. 81-1714.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 26, 1982.
Decided March 17, 1982.
Patrick S. Moore, Walter M. Ketchum, Ltd., Chicago, Ill., for plaintiffs-appellants.
David E. Bennett, Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., Chicago, Ill., for defendant-appellee.
Before CUMMINGS, Chief Judge, and PELL and SPRECHER, Circuit Judges.
PELL, Circuit Judge.
This is an appeal from the dismissal of a complaint filed by the plaintiffs, Kenneth and Dorothy Garrison, against the defendant, Heublein, Inc., the manufacturer and distributor of Smirnoff vodka. In that complaint, the plaintiffs alleged that Kenneth Garrison has suffered physical and mental injuries as a result of consuming the defendant’s product over a twenty-year period. They urged that the defendant is liable for those injuries on five separate theories: negligence, willful and wanton conduct, products liability, fraud, and false and misleading advertising. The crux of each of those claims is not that the product was adulterated or tainted, but rather that the defendant failed to warn the plaintiff of certain “propensities” of the product.
In response to the defendant’s motion under Fed.R.Civ.P. 12(b)(6), the court dismissed the complaint for failure to state a claim upon which relief can be granted. In its order, the court noted that each of the plaintiffs’ theories of recovery “rest[s] on the claim that defendant had a duty to disclose, by labels and advertising, that consumption of its products may be hazardous to the consumer’s health and physical and economic well-being.” The court observed that the imposition of such a duty would have to be based on the “premise that liquor poses latent risks not appreciated by users.” Rejecting that premise, the court found that, in light of common knowledge concerning alcohol and its effects, “the defendant has no duty to add, by labels or advertising, to the flow of information.”
In this appeal, the plaintiffs challenge the district court’s dismissal in two respects. First, they argue that the court did not apply the proper standard in ruling on the defendant’s Rule 12(b)(6) motion. Second, they attack the substance of the decision, arguing that the court erred in ruling, as a matter of law, that the defendant does not have a duty to warn. In support of their second argument, they assert the following points: (1) that the defendant’s product is defective because of the absence of warnings of dangers inherent in its use; (2) that the defendant has a duty to warn because the dangers of the products are not obvious; and (3) that, even if the dangers can be characterized as obvious, policy reasons dictate that a duty to warn be imposed. For the reasons noted below, we reject these arguments and affirm the judgment of the district court.
I
The proper standard for appraising the sufficiency of a complaint is “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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Reichenberger v. Pritchard, 660 F.2d 280 (7th Cir. 1981). The plaintiffs’ contention that the district court misapplied that standard is mistaken. Clearly, under the standard, “ ‘want of merit may consist in an absence of law to support a claim of the sort made.’ ” 2A Moore’s Federal Practice ¶ 12.08 at 2271 (2d ed. 1981) (quoting De Loach v. Crowley's, Inc., 128 F.2d 378, 380 (5th Cir. 1942)). That was precisely the basis for the court’s dismissal. It found each of the plaintiffs’ theories of recovery premised on an alleged duty to disclose which, as a matter of law, does not exist. Because, under Illinois law, the determination of whether a duty to warn exists is a question of law, Genaust v. Illinois Power Company, 62 Ill.2d 456, 466, 343 N.E.2d 465, 471 (1976), the court’s analysis was procedurally correct. Our review, then, must focus on the soundness of the underlying substantive legal determination.
II
Although the plaintiffs allege five separate theories of recovery, their appellate argument concerning the defendant’s duty to warn relies to a great extent upon concepts developed in the field of strict liability. Because that theory involves the lowest threshold for establishing such a duty, a failure in that regard would necessarily undercut the duty component of the other counts. Thus, it is appropriate to begin our inquiry by focusing on that area of law.
The doctrine of strict products liability, as articulated in the Restatement (Second) of Torts § 402A, has been adopted as law in Illinois. Genaust v. Illinois Power Company, supra; Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). That section imposes liability upon “[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer.... ”
Initially, the plaintiffs attempt to bring themselves within the doctrine by relying on Illinois cases which hold “that a failure to warn of a product’s dangerous propensities may [itself] serve as the basis for holding a manufacturer or seller strictly liable in tort.” See Woodill v. Parke Davis & Co., 79 Ill.2d 26, 29, 37 Ill.Dec. 304, 306, 402 N.E.2d 194, 196 (1980). That move, however, is of little value to the plaintiffs. It only demonstrates that, in circumstances when a warning is necessary, the failure to give that warning may support a strict liability action. It does not answer the critical question, that is, whether a warning is necessary in this case.
In Lawson v. G. D. Searle & Company, 64 Ill.2d 543, 1 Ill.Dec. 497, 356 N.E.2d 779 (1976), the Supreme Court of Illinois provided an insight into the proper approach for reaching an answer to that more basic question. In that case, the court approved the following jury instruction:
A product faultlessly made may be deemed to be unreasonably dangerous if it is not safe for such a use that is to be expected to be made of it and no warning is given.
64 Ill.2d at 547,1 Ill.Dec. at 499, 356 N.E.2d at 781 (emphasis added). The court noted that the instruction paralleled certain comments to section 402A of the Restatement. Thus, those comments can lend to an understanding of this area of law.
Comment h restates the basic predicate of the Lawson jury instruction: “A product is not in a defective condition when it is safe for normal handling and consumption.” The comment then qualifies that general proposition by noting that “[w]here, however, [a seller] has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger (see comment j), and a product sold without such warning is in a defective condition.”
The plaintiffs rely on the latter language to support their contention that a warning is necessary in this case. They ignore, however, the fact that that qualification itself contains a caveat, the reference to comment j. That comment dealing with “directions and warning,” is most salient to our present inquiry. It states in part that:
a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized. .. . [T]he dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.
This treatment of dangers “generally known and recognized” is also apparent in comment i, which describes the requirement of unreasonable dangerousness under section 402A:
The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics... .
This position is consistent with the Illinois Supreme Court’s finding in Genaust v. Illinois Power Company, 62 Ill.2d at 466, 343 N.E.2d at 471, that the determination of whether a duty to warn exists involves a question of foreseeability, which must be resolved under a standard of objective reasonableness. In that case, the court refused to impose on the manufacturer of metal antennas a duty to warn consumers of the danger of electrical arcing if the product was used in close proximity to power wires. The court found that, because “it is common knowledge that metal will conduct electricity..., it is not objectively reasonable to expect that a person . . . would attempt to install a metal tower and antenna in such close proximity to electrical wires.” Id.
Likewise, in this case, we find that even though there are dangers involved in the use of alcoholic beverages, because of the common knowledge of those dangers, the product cannot be regarded as unreasonably unsafe. See Prosser, Law of Torts 660 (4th ed. 1971). And, in light of the approach to the duty to warn approved in Lawson, a product that is not unsafe “for such a use that is to be expected to be made of it” requires no warning. Thus, we affirm the district court’s finding that the defendant in this case has no duty to warn.
The plaintiffs’ final attempt to counter this implication of the common knowledge of the dangers of alcohol by arguing that, as a matter of policy, the “manufacturer of [an] obviously defective product ought not to escape because the product was obviously a bad one,” must also be rejected. Their objection might be appropriate as a challenge to an “obvious danger doctrine” under which a manufacturer is discharged from his duty to warn merely by establishing that a defect is obvious. See Harris v. Karri-On Campers, Inc., 640 F.2d 65, 76 (7th Cir. 1981) (interpreting West Virginia law). That, however, is not our approach in this case. We are not saying that a duty to warn cannot arise simply because a defect in a product is obvious, even if that defect causes the product to remain unreasonably dangerous. Rather, we are saying that the dangers of the use of alcohol are common knowledge to such an extent that the product cannot objectively be considered to be unreasonably dangerous.
Because the district court was correct in finding that the defendant does not have a duty to warn a consumer of the common “propensities” of alcohol, and such a duty is essential to each of the plaintiffs’ theories of recovery, we affirm the judgment of the district court.
. Jurisdiction is based on diversity of citizenship. The plaintiffs are both citizens of the State of Illinois. The defendant is a citizen of the State of Connecticut. The amount in controversy exceeds $10,000, exclusive of interest and costs.
. The plaintiffs claimed that the product has propensities “to cause physical damage to the consumer;” “to cause impairment to physical and motor skills for a period of time after consumption;” “to cause impairment to mental capacity and facilities for a period of time after consumption;” to affect the personality of the consumer; to be addictive; and to create dangers in the operation of a motor vehicle. The plaintiffs also complained that the defendant failed to state the ingredients of the product and the amount of the product that can be safely consumed.
. We agree with the district court’s premise that the legal sufficiency of each of the plaintiffs’ theories of recovery, as alleged in their complaint, hinges on whether a duty to warn exists.
. Such cases characterize the “failure to warn” as the “defect” in order to conform to the language of the Restatement. See, e.g., Nelson v. Hydraulic Press Manufacturing Company, 84 Ill.App.3d 41, 45, 39 Ill.Dec. 422, 425, 404 N.E.2d 1013, 1016 (2d Dist. 1980).
. The Court referred to comments h, i, and k.
. The plaintiffs’ reliance on certain passages in the Report to the President and the Congress on Health Hazards Associated with Alcohol and Methods to Inform the General Public of these Hazards, U.S. Department of the Treasury and U.S. Department of Health and Human Services (1980), which illustrate that there are misperceptions about the use of alcohol, is not sufficient to upset the district court’s finding, with which we agree, that it is common knowledge that certain dangers, including those alleged in the plaintiffs’ complaint, are involved in the use of alcohol. See Pritchard v. Liggett & Myers Tobacco Company, 295 F.2d 292, 302 (3d Cir. 1961) (concurring opinion).
. The alternative analytical approaches suggested by the plaintiffs, see Nelson v. Hydraulic Press Manufacturing Company, supra (balancing test), and Illinois State Trust Company v. Walker Manufacturing Company, 73 Ill.App.3d 585, 29 Ill.Dec. 513, 392 N.E.2d 70 (5th Dist. 1979) (unequal knowledge), are inapposite in that they do not specifically deal with the question of the common knowledge of a product’s dangers.
. Palmer v. Massey Ferguson, Inc., 3 Wash.App. 508, 517, 476 P.2d 713, 719 (Wash.1970).
. For example, presumably a duty to warn would arise in the case of an obviously unguarded blade in a power-driven saw if the danger of injury was found to be unreasonable notwithstanding the obviousness of the defect.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_casetyp1_6-3 | 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.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. MASON & HANGER COMPANY, Inc., Defendant-Appellee. ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. WALSH CONSTRUCTION COMPANY, Inc., Defendant-Appellee. ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. B. PERINI & SONS, Inc., Defendant-Appellee. ROCK DRILLING, BLASTING, ROADS, SEWERS, VIADUCTS, BRIDGES, FOUNDATIONS, EXCAVATIONS AND CONCRETE WORK ON ALL CONSTRUCTION, HOD CARRIERS’, BUILDING AND COMMON LABORERS’ LOCAL UNION NO. 17, Plaintiff-Appellant, v. GEORGE M. BREWSTER & SON, Inc., Defendant-Appellee.
Nos. 17, 16, 18, 19, Dockets 23066, 23065, 23067, 23068.
United States Court of Appeals Second Circuit.
Argued Nov. 5, 1954.
Decided Dec. 6, 1954.
Boudin, Cohn & Glickstein, New York City, Francis Martocci and Charles De La Vergne, Kingston, N. Y. (Hyman N. Glickstein and Daniel W. Meyer, New York City, of counsel), for plaintiff-appellant.
Nevius, Brett & Kellogg, New York City, for defendent-appellee, Mason & Hanger Company, Inc. and Willkie, Owen, Farr, Gallagher & Walton, New York City, for defendants-appellees, Walsh Construction Company, Inc. and B. Perini & Sons, Inc. (Franklin Nevius, Mark F. Hughes, James E. Carroll and F. Davis Gardner, New York City, of counsel).
William H. Wurts, New York City, John J. Breshin, Hackensack, N. J., of counsel, for defendant-appellee George M. Brewster & Son, Inc.
Before CHASE, MEDINA and HINCKS, Circuit Judges.
MEDINA, Circuit Judge.
These are four companion actions in tort by a labor union to recover damages alleged to have been sustained severally by some hundreds of employees of each defendant by reason of diminution of wages and lack of proper working conditions, said to have been caused by the operation of a conspiracy between one James Bove and each of defendants pursuant to which certain bribes were paid by each defendant to Bove. References herein are to the record in the action against Mason & Hanger Company, Inc., as the opinion below was published under the title of that action.
The original complaints were dismissed by Judge Rifkind for lack of jurisdiction of subject matter and for failure to state a claim upon which relief could be granted. Amended complaints were dismissed by Judge Samuel H. Kaufman, who found that, “notwithstanding some changes in verbiage and some additions,” the amended complaints suffered from the same infirmities as were apparent upon the face of the others. These appeals bring up for our consideration the sufficiency of both the original and the amended complaints.
The original complaint asserted jurisdiction “by virtue of the provisions of Section 301 of the Labor Management Relations Act of 1947” (the Taft-Hart-ley Act) and 28 U.S.C.A. § 1382, alleging diversity of citizenship (plaintiff and all its members being citizens of New York and defendant a West Virginia corporation), together with the usual conclu-sory statement that “the amount in controversy herein, exclusive of interest and costs, exceeds the sum or value of $3000.”
The charge was that Bove was vice-president of International Hod Carriers’, Building and Common Laborers’ Union of America, the parent international of the plaintiff local union, that Bove dominated and controlled the plaintiff and represented plaintiff and its members in collective bargaining with employers. It is alleged that, between August 28, 1939 and August 22, 1944, upwards of 400 workmen, members of the plaintiff, worked for defendant in the performance of a contract, between defendant and the Board of Water Supply of the City of New York for the construction of part of the Delaware Aqueduct Project, which provided for lower rates of pay and more dangerous and deleterious working conditions than would have been the case but for “a fraudulent, wrongful and illegal conspiracy,” formed in July, 1939, between Bove and defendant, in the operation and pursuant to the terms of which defendant paid Bove a bribe of $36,000 and Bove caused the workmen to agree and they “agreed to and did, during the aforesaid period of time, render labor and services for the defendant at the aforesaid lower rate of wages and more dangerous and deleterious working conditions,” and sustained other loss, “all to the damage of the plaintiff as the representative of its said members” in the sum of $600,000, the conspiracy not having been discovered until March 8, 1945. The parties stipulated that the “plaintiff has brought this action in a representative capacity on behalf of its members who were employed by defendant,” and that “the damages sought * * * are and are limited to the damages sustained by those members of the plaintiff who were employed by the defendant as aforesaid.”
Thus on the face of the original complaint it is clear beyond cavil that the action sounded in tort and that plaintiff had aggregated some 400 separate individual claims for damages amounting in all to $600,000, but considerably less than $3,000 apiece.
The amended complaint asserts jurisdiction on the same basis as before, re-alleges the making of the contract with the Board of Water Supply, the conspiracy with and the payment of the $36,000 bribe to Bove, and the rendition of services by the workers for lower rates of pay and under more dangerous and deleterious working conditions, with a slightly different choice of words here and there. What is claimed to be significantly new is: (1) the inclusion of allegations that the International, through Bove, negotiated with defen d-ant and executed a collective bargaining agreement fixing rates of pay and working conditions said to be lower and more dangerous and deleterious than would have been the case but for the conspiracy and the payment of the bribe, and that the collective bargaining agreement was executed “on behalf of the plaintiff and its members” and “the same was assigned by the International to the plaintiff”; (2) the inclusion of an allegation that defendant was “unjustly enriched” in the amount of the bribe of $36,000, and “the members of the plaintiff employed by the defendant as aforesaid were damaged at least in the said amount”; and (3) a prayer for relief “declaring and adjudging” that the collective bargaining agreement was made pursuant to the conspiracy and in consideration of the bribe, that “the members of the plaintiff” were damaged at least in the amount of $36,000, and “directing” that $36,000 be paid to plaintiff and that plaintiff hold the same “as trustee for its said members for distribution among them as their respective interests may ultimately appear.” The parties again stipulated that the damages sought were limited to those sustained by the members of plaintiff who were employed by defendant in the performance of the contract with the Board of Water Supply.
Every event upon which plaintiff rests its claim for relief occurred prior to the passage of the Taft-Hartley Act in 1947.
Reversing the normal order, and doing so solely for the sake of clarity and to avoid repetition, we shall discuss last the question of jurisdiction over the subject matter of the action.
At the outset it is clear that at common law no cause of action whatever would have been vested in plaintiff as a matter of substantive law. See 3 Moore’s Federal Practice (2d Ed.) pp. 1331-2. Nor did an unincorporated association such as plaintiff have any capacity to sue or be sued. Moffat Tunnel League v. United States, 1933, 289 U. S. 113, 118, 53 S.Ct. 543, 77 L.Ed. 1069. There was no such separate entity known to common law procedure; and each and every member of the association was required to join or be joined as in the case of partners. Such is still the law in many state jurisdictions today, although it is quite common, as in New York, to find code or other statutory provisions permitting actions to be maintained by or against the president or treasurer or other officers of an unincorporated association.
In addition to the limited general terms of Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on “Capacity to Sue or Be Sued”, specific provisions are contained in Title III of the Taft-Hartley Act relative to “Suits by and against Labor Organizations.” Section 301(a) serves the dual purpose of giving the United States District Courts jurisdiction to entertain and decide suits by labor unions “for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * *, without respect to the amount in controversy or without regard to the citizenship of the parties”, and also, by necessary implication, constituted such labor unions the trustees of recoveries in such actions for the benefit of such of the employees as might be entitled to the proceeds thereof. This Section 301(a) has been held to have created “a new substantive liability,” and not applicable to breaches of contract which antedated June 23, 1947, when the Taft-Hartley Act was enacted. Schatte v. International Alliance of Theatrical Stage Employees, etc., 9 Cir., 1950, 182 F.2d 158, 164, certiorari denied, 1950, 340 U.S. 827, 71 S. Ct. 64, 95 L.Ed. 608, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 194, 95 L.Ed. 643; Studio Carpenters Local Union No. 946 v. Loew’s, Inc., 9 Cir., 1950, 182 F.2d 168, certiorari denied, 1950, 340 U.S. 828, 71 S.Ct. 64, 95 L.Ed. 608, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 194, 95 L.Ed. 643.
The capacity provision, applicable generally to all suits by or against labor unions, is contained in Section 301 (b), as follows: "Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States.” This is followed, in the same and subsequent subdivisions of Section 301, by certain limitations concerning the enforceability of the judgment, venue, service of process and allied procedural matters, all of which together comprise a harmonious and consistent pattern, when Section 301 is considered as a whole.
The expansion of jurisdiction and the creation of the substantive right to maintain particular suits, which we find in Section 301(a), are strictly limited to those for violation of contracts, such, for example, as the collective bargaining contract negotiated here between the International and the defendant. We need not pause to consider whether a local union, as assignee, is intended to be included.
Nor is there anything ambiguous about the expression “as an entity and in behalf of the employees”. These words merely round out and clarify the meaning of the sentence as a capacity statute and nothing more. No substantive rights whatever are affected thereby. The unincorporated association is recognized as “an entity,” despite the fact that it acts and will sue or be sued only “in behalf of the employees whom it represents”.
Plaintiff would have us construe these words as a blanket and retroactive grant of authority to unions to maintain in behalf of their members suits of any character, whether of tort or contract, and irrespective of the nature of the rights, obligations or duties involved, provided only that the litigation arises in some vague way “out of the employment relationship.” This would indeed open a Pandora’s box and the resulting evils and inconveniences would perhaps lead to unsatisfactory conditions reminiscent of those existing prior to the passage of the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S.C.A. § 251 et seq. Nothing short of a clear and positive mandate by the Congress could suffice to work such a revolutionary change. Cf. Elgin, J. & E. Ry. Co. v. Burley, 1945, 325 U.S. 711, 733-734, 65 S.Ct. 1282, 89 L.Ed. 1886, on rehearing, 1946, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928.
Moreover, it seems more than passing strange that the Congress should so carefully limit the clause, subdivision (a), to suits for violation of a particular type of contracts, and then, in subdivision (b), throw the door wide open to the maintenance by unions “in the courts of the United States” of actions to recover damages for private torts committed by the employer against individual employees, in the course of the “employment relationship,” provided there were the requisite diversity of citizenship and the necessary amount in controversy. This flies in the face of common sense.
A careful appraisal of the natural and inevitable consequences of the adoption of plaintiff’s interpretation of Section 301 makes it apparent that this view of its meaning is designed not as a reasonable construction of the statute, but is merely a distortion of its meaning to make it fit this case.
If a labor union is thus authorized to sue to recover damages recoverable by individual workers for separate torts, what is to become of the phrase “may sue or be sued” ? If in the course of the “employment relationship” an employee does some private sabotage or assaults the manager or otherwise does damage to person or property, can it be intended that the union may be held liable ? Plaintiff answers no. But the phrase is “sue or be sued”; a construction which in a given category of cases favors maintenance of the suit must likewise be applicable when the shoe is on the other foot.
Furthermore, the adoption of the interpretation of Section 301(b) which plaintiff presses upon us would raise a multiplicity of other questions, the answers to which are not to be found either in the crucial sentence relied on or anywhere else in the statute. It is not disputed that each of the individual workers who suffered loss through the operation of the alleged conspiracy could sue alone to recover his damages. Must such a suit be commenced before action is taken by the union ? The claims of each of the 400 employees would seem to involve questions of law or fact common to his own claim and that of the others. Assuming that he could comply with the conditions prescribed in Rule 23(a) of the Federal Rules of Civil Procedure, and that, with diversity as here, the claim of each was in excess of $3,000, exclusive of interest and costs, one worker might choose to sue as a member of the class, for his own benefit and for the benefit of some or all of the others. Are all to be subordinated to the control of the union and thus compelled to leave the management of the litigation of their personal rights to the judgment of the attorney for the union? Suppose the union desired to press the claims of some but less than all the workers? Nothing in the views submitted for our consideration would seem to prevent the union from doing so. Nor is the operation of the doctrine of res judicata to the various phases of this problem free from serious doubt. Counsel tell us that the Congress intended that the right to sue be limited to the enforcement of obligations arising “out of the employment relationship.” But this is pure assertion. No such words of limitation are to be found in Section 301(b). If Section 301 (b) is to be construed as anything more than a simple capacity statute, we can find no basis for construing it in such fashion as to justify this particular suit but to go no further. If the Congress intended the unions to be general litigating agencies for the workers, why not go the whole hog? These doubts and perplexities merely serve to emphasize the fact that the entire subject was one which the Congress chose to leave alone, except in the case of suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, as provided in Section 301(a), and giving to such organizations generally the capacity to sue or be sued in the federal courts as provided in Section 301 (b).
The portion of Section 301(b) relied upon by plaintiff is a capacity statute pure and simple and goes no further. Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 1948, 167 F.2d 183, 187-188. Moreover, nothing in the legislative history of the Taft-Hartley Act has been called to our attention, nor has our own research revealed anything to indicate that the intention of the Congress was otherwise.
Nor need we tarry long over Rule 23 of the Federal Rules of Civil Procedure, applicable to class actions, and providing: “If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right * * * is * * * (3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.” As plaintiff is not a member of the class, Rule 23 is not applicable.
So much for procedure; and we turn to the substantive law phase of the case.
The pertinent part of Rule 17 of the Federal Rules of Civil Procedure provides : “Every action shall be prosecuted in the name of the real party in interest; but * * * a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought * * *»
It is elementary that the jurisdiction of the federal courts is neither enlarged nor restricted by this Rule, and that its purport is to require that the action be prosecuted in the name of the party, who, by the substantive law, has the right sought to be enforced. 3 Moore’s Federal Practice (2d Ed.) pp. 1305, 1311.
Plaintiff claims that it has a right to sue because it is both “a party with whom or in whose name a contract has been made for the benefit of another” and “a party authorized by statute”. But we have already seen that the only statute claimed to have any relevancy to the case, Section 301(b) of the TaftHartley Act, is a mere regulation of procedure, conferring no substantive rights whatever upon the union. And a consideration of the very considerable number of cases construing Rule 17 and its counterpart in various state Codes discloses nothing to support plaintiff’s contention that the contract clause is applicable to actions to recover for torts if the suit “relates to the making of the contract or its performance.” Here the claim sought to be enforced “relates” to the collective bargaining contract only in an incidental way. The gist of the action is the wrongful conduct of defendant in conspiring with Bove and bribing him as alleged. This is neither a suit to enforce the contract nor to recover for a breach thereof.
The elaborate argument concerning suits by the promisee of a third-party beneficiary contract expends itself without affecting the matter in hand. Where an employer enters into a collective bargaining agreement with a union, followed by individual wage contracts with the employees, and then fails to pay the wages agreed upon, or otherwise commits a breach of the agreement, it may well be that the collective bargaining agreement becomes part of the terms of employment and that either the union or the employee may sue in the federal courts — the union pursuant to the provisions of Section 301(a), irrespective of diversity or amount, and the employee only upon a showing of diversity and an amount in controversy over $3,000, exclusive of interest and costs. United Protective Workers of America v. Ford Motor Co., 7 Cir., 1952, 194 F.2d 997. Even this phase of the general problem is not free from doubt, where the union sues in the federal courts, despite the fact that Section 301(a) of the Taft-Hartley Act contains “a grant of federal-question jurisdiction and thus creates a federal, substantive right.” See Association of Westinghouse Salaried Emp. v. Westinghouse Elec. Corp., 3 Cir., 1954, 210 F.2d 623, 625, certiorari granted, 1954, 347 U.S. 1010, 74 S.Ct. 868. But we are not concerned here with deciding who may sue for breach of the agreement alleged to have been wrongfully and conspiratorially negotiated by Bove, but rather with the substantive law question: in whom is vested the right to recover damages for the torts alleged to have been committed by defendant in breach of its duty to its several employees to refrain from wrongfully injuring them.
We conclude that there is nothing in Rule 17 to support plaintiff’s substantive-right to sue for the recovery of the damages sustained severally by the 400 employees.
Moreover, we must not forget that the-rights of each of the employees whom-plaintiff claims to represent came into-existence long prior to the Taft-Hartley Act. A statute conferring no more than capacity to sue or be sued is remedial' and may be given immediate effect; but plaintiff has not afforded us with any enlightenment on the subject of how the substantive law could be changed retroactively so as to vest in the union the rights claimed for it, without the plainest sort of statutory language requiring retroactive effect, Chew Heong v. United States, 1884, 112 U.S. 536, 559, 5 S.Ct.. 255, 28 L.Ed. 770, and, even then, without raising constitutional questions,, which could not lightly be brushed aside.. We have already observed that the courts-have refused to give retroactive effect to-the provisions of Section 301(a). Schatte v. International Alliance of Theatrical Stage Employees, etc., Studio Carpenters-Local Union No. 946 v. Loew’s, Inc., supra.
The foregoing discussion of the procedural and substantive aspects of the-case has left little to be said on the decisive subject of jurisdiction. As Section 301(b) merely gives unincorporated! labor organizations a status in the federal courts where commerce is affected, and as Section 301(a) confers jurisdiction, irrespective of the amount in controversy and the citizenship of the parties, only of suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, there is no federal-question jurisdiction here; and plaintiff must fall back on diversity. But plaintiff is again confronted by an insurmountable obstacle. The claims sought to be enforced are several rather than joint, and no single claim amounts to more than a few hundred dollars. May these 400 claims be aggregated, to make up the necessary jurisdictional amount in controversy?
The controlling principles have long been settled. Whether the parties be several, or one suing in a representative capacity on behalf of others, the amounts claimed by or on behalf of each of those injured by the wrongful conduct of defendant may be aggregated only where those “having a common undivided interest, unite to enforce a single title or right”. Thomson v. Gaskill, 1942, 315 U.S. 442, 62 S.Ct. 673, 675, 86 L.Ed. 951. And this is the established law even though the several claims are derived from a single instrument or arise as the result of a negligent or wrongful act which results in loss or damage to many persons. Pinel v. Pinel, 1916, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817; Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001.
While plaintiffs argues that the theory of the amended complaint, and the additional allegations therein contained, has changed the nature of the rights sought to be asserted in this case so that there is now “a common undivided interest” and “a single title or right,” the amended complaint shows clearly on its face that this is not so. By asserting “unjust enrichment” in the amount of the bribe, reducing the ad damnum clause from $600,000 to $36,000, as “at least” the amount of the aggregate damage, and calling this a “fund” to which plaintiff is entitled “as trustee,” plaintiff has merely added verbiage. There is no fund. The claim remains one on behalf of 400 separate individuals for the damage suffered by each due to the alleged tortious conduct of defendant in entering into the alleged conspiracy with Bove and paying him the bribe of $36,-000.
Nothing to the contrary was held in Local Union No. 497 of Amalgamated Ass’n of Street & Electric Ry. Employees v. Joplin & P. Ry. Co., 8 Cir., 1923, 287 F. 473, where an action authorized by the terms of a Kansas statute was removed to the federal court and it was held that the requisite jurisdictional amount was involved because the statute authorized the maintenance of the suit “collectively” to recover the aggregate difference between the wages actually paid and those “found and determined” by the Kansas Court of Industrial Relations. As stated by Judge Sanborn, 287 F. at page 476, “The only controversy between the plaintiffs and the defendant is whether or not by reason of the order and finding of the industrial court the defendant was in legal effect adjudged to pay the plaintiffs the $7,271.47, or any of it.”
Nor does anything contained in N.Y. Penal Law, Section 439, McK.Consol. Laws, c. 40, and Donemar, Inc. v. Molloy, 1930, 252 N.Y. 360, 169 N.E. 610, which seem to have little bearing on the case, alter the fact that the claims of each of the 400 odd employees, whom plaintiff claims to represent, are for the damages individually suffered by each of them by reason of defendant’s tortious conduct. Here again, what is plainly a series of separate and distinct claims cannot be transmuted into “a single title or right” by the mere expedient of asking for less damages than each would be entitled to were he to have sued alone and casting the prayer for relief in the form of a declaratory judgment proceeding affecting the disposition of a so-called “fund.”
Accordingly, even if the plaintiff had some right to recover on behalf of each of the 400 odd employees described in the complaints, which we think not to be the case, it would still be plain on the face of the complaints that the District Court was wholly without jurisdiction of the subject matter of the action.
So much of the orders appealed from as dismisses the complaint and the amended complaint for lack of jurisdiction is' affirmedl
. “Suits By And Against Labor Organizations
“Sec. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
“(b) Any labor organization which represents employees in an industry affecting commerce as defined in this Act and any employer whose activities affect commerce as defined in this Act shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be .enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.
“(c) For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly author,-ized officers or agents are engaged in representing or acting for employee members.
“(d) The service of summons, subpena, or other legal process of any court of the United States upon an officer or agent of a labor organization, in Ms capacity as such, shall constitute service upon the labor organization.
“(e) For the purposes of this section, in determining whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling:” 29 U.S.O.A. § 185.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer: |
songer_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".
UNITED STATES v. LIVERPOOL & LONDON & GLOBE INS. CO., Limited et al.
No. 14404.
United States Court of Appeals Fifth Circuit.
Dec. 21, 1953.
Rives, Circuit Judge, dissented.
Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., H. Brian Holland, Asst. Atty. Gen., Louise Foster, Washington, D. C., A. F. Prescott, John J. Kelley, Jr., Sp. Assts. to Atty. Gen., Frank B. Potter, U. S. Atty., Midland, Tex., William Cantrell, Jr., Asst. U. S. Atty., for appellant.
James R. Alexander, Will C. Thompson, Vernon Coe and R. B. Cousins, III, Dallas, Tex., Goldberg & Alexander, Dallas, Tex., Thompson & Coe, Dallas, Tex., for appellees.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
BORAH, Circuit Judge.
This is an appeal from a final judgment of the United States District Court for the Northern District of Texas holding that the appellee Sunnyland Wholesale Furniture Company had a garnishment lien upon funds of D. Ray Adams and his wife which was superior to a federal income tax lien claimed by the United States of America, appellant.
The undisputed facts are these. In the month of December, 1951, assessments were executed by the Commissioner of Internal Revenue covering withholding taxes and interests thereon which were assessed against D. Ray Adams, d/b/a Adams Furniture & Hardware Company, for the year 1951. The assessment lists were received on December 26, 1951, and February 26, 1952, respectively, by the Acting Collector of Internal Revenue for the First Collection District of Texas and on March 24, 1952, he filed a notice of tax lien in the office of the County Clerk of Bell County, Texas, in favor of the United States in the sum of $2,520.05.
On March 8, 1952, fire destroyed certain stock, furniture, and fixtures of the Adams Company in Bell County which was the community property of D. Ray Adams and Mary Martha Adams, his wife. The loss was covered by fire insurance policies in force with appellee Liverpool & London & Globe Insurance Company, Ltd., and another insurer not here involved. Adjusters for the insurance companies determined the extent of the loss to be $15,153.06, and an agreement was entered into between Adams and his wife and the insurance companies to settle for that amount, each company agreeing to share one-half of the liability or $7,576.53. On April 7, 1952, the Acting Collector issued warrants of distraint and served on insurer’s local agent a notice of levy in the amount of $2,784.56, together with copies of the warrants of distraint and notice of tax lien.
On April 8, 1952, and prior to the payment of the insurance proceeds to any party the appellee furniture company filed suit on sworn accounts against Adams in the District Court of Dallas County, Texas, to obtain a judgment in the amount of $2,329.27. At the same time a garnishment suit was brought against the appellee insurance company to establish and enforce its garnishment lien in the sum of $2,329.27 with interest and costs against the funds held by its local agent. A writ of garnishment issued and on the following day it was served on the agent, attaching these funds.
On April 18, 1952, during the pend-ency of the state court proceedings, additional assessments were executed by the Commissioner of Internal Revenue covering income taxes and interests thereon which were assessed against Adams and his wife for the years 1948 to 1950, inclusive. The assessment list was received on April 21, 1952, by the Acting Collector and on April 26, 1952, he filed a notice of tax lien in the office of the County Clerk of Bell County in favor of the United States in the sura of $10,417.57 plus interest. Thereafter, the Acting Collector served on the insurer’s local agent a copy of the notice of tax lien together with warrants of distraint and notice of levy in the amount of $10,469.96.
This suit is an outgrowth of the state court garnishment proceeding which was instituted by appellee Sunnyland Wholesale Furniture Company. By an amendment to its answer therein the appellee insurance company named the United States as an additional party defendant on the grounds, among others: (1) that it had been served with the aforementioned notices of levy and warrants of distraint notifying garnishee that all property, rights to property, monies, credits and/or bank deposits in appel-lee’s possession and belonging or owing to D. Bay Adams, Adams Furniture & Hardware Company, and Mary Martha Adams were seized and levied upon for the payment of the tax liens in the amounts of $2,784.56 and $10,469.96; ■’(2) that demand was made upon the appellee insurer for these sums or for such lesser sum as it may owe to the tax debtors; and (3) that the garnishee did not know and was unable to learn what the attitude of the United States, the Acting Collector of Internal Bevenue or the plaintiff in the garnishment proceeding would be relative to the matter of priorities as between them. The relief asked was that citation issue against the United States and the Acting Collector requiring them to answer and appear and set up their claims for lien or such other claims as they or either of them assert in connection with either of the levies above mentioned; that the garnishee be protected against liability in excess of its liability to the assured; and that it be granted a reasonable attorney’s fee. This amendment was allowed and process was issued commanding the impleaded defendant, the United States of America, to appear in the state court. The suit was thereafter removed to the United States District Court for the Northern District of Texas on petition of the United States. Subsequently, and upon the ground that it had not consented to be made a party defendant the Government moved that the action against it be dismissed and that it be allowed to intervene as a party plaintiff for the purpose of seeking foreclosure of its lien. This motion was granted and the United States filed its petition in intervention naming Adams and his wife and the two appellees herein as defendants and claiming first and prior tax liens under Section 3670 et seq. of Title 26, U.S.C., on any and all property and rights to property belonging to the taxpayers. The appellee insurance company filed responsive pleadings in which it tendered its loss draft in the sum of $7,500.39 into the registry of the court and prayed for an order directing the clerk to receive and collect this draft and place the proceeds in the registry of the court and that Adams and his wife, the United States, and the appellee furniture company be required to inter-plead setting up the rights of each of them in and to the fund. It further prayed for a discharge from any other or further liability and for a reasonable attorney’s fee in the sum of $500.00. Thereafter and on motion of the insurer the court entered an order directing the clerk to receive and collect the draft and place the proceeds thereof in the court’s, registry subject to the further order of the court. After the pleadings were closed a trial was had on the merits upon the pleadings, evidence and an agreed written stipulation of facts.
The District Court made fact findings and concluded as a matter of law-that the appellee furniture company had a fixed lien by virtue of the execution. of its writ of garnishment which was prior in point of time and superior-to the Federal income tax lien claimed by the United States. The court was. further of opinion that there was no-contest between the appellee insurance-company and any other parties to the cause and concluded that the insurer-was entitled to a reasonable attorney’s fee. Judgment was accordingly entered in favor of the appellee furniture company and against the United States for the specified amount due on its lien and it was ordered that the insurance company be allowed a $500.00 attorney’s fee and that the remaining balance of the tender into the registry of the court by the appellee insurer be paid to the United States. From this judgment the United States has appealed and the defendant garnishee below, Liverpool & London & Globe Insurance Company, Ltd., and the plaintiff, Sunnyland Wholesale Furniture Company, are appellees herein.
The tax liens asserted by the United States stem from 53 Stat. 448, 449, 26 U.S.C. (1946 ed.) §§ 3670, 3671, 3672. Section 3670 provides: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” Section 3671 provides that unless some other date is specified by law the lien arises when the assessment lists are received by the collector, which effective dates are December 26, 1951, and February 26, 1952, as to the withholding tax liens and April 21, 1952, as to the income tax lien. Section 3672 provides that the lien shall not be valid against mortgagees, pledgees, purchasers or judgment creditors, until notice thereof has been filed in the office provided by the law of the state for such filing • — in this case, the office of the County Clerk of Bell County. The appellee furniture company does not claim to be within the classes of persons specified m § 3672, and, accordingly, that section is not material to our present inquiry. Furthermore, it was conceded during oral argument that the withholding tax liens are prior in time to the garnishment lien and it follows that the United States is entitled to a priority in payment of $2,578.55 out of the funds on deposit in the registry of the District Court. The important question here is whether at the time the Government’s income tax lien arose appellee’s garnishment lien possessed “the characteristics of a specific perfected lien which alone bars the priority of the United States.” See United States v. Knott, 298 U.S. 544, 56 S.Ct. 902, 905, 80 L.Ed. 1321. The issue thus concerns the effect of a lien in relation to a provision of federal law for the collection of debts owing the United States, which has always been considered a federal question. Hence the Supreme Court has consistently held that while a state court’s characterization of a lien as specific and perfected is entitled to weight, it is subject to reexamination by the federal courts. On the other hand, if the state court itself describes the lien as inchoate, this classification is “practically conclusive.” Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 371, 67 S.Ct. 340, 91 L.Ed. 348.
In this case the United States first argues that under the law of Texas the lien of the appellee furniture company was inchoate and that therefore we may reverse the judgment on this basis. More specifically it argues that in Texas a garnishing creditor’s rights in the property are purely potential and contingent until judgment is entered establishing the garnishment lien. We do not at all agree.
Under the law of Texas, as expressed by statute and the decisions of its highest court, a garnishment is virtually a process of attachment and the service or levy of the writ of garnishment or attachment upon personal property creates a lien from the date of the levy, giving to the creditor a paramount right to such property itself as a security for the satisfaction of his demand. Focke v. Blum, 82 Tex. 436, 17 S.W. 770; Buerger v. Wells, 110 Tex. 566, 222 S.W. 151; Kanaman v. Hubbard, 110 Tex. 560, 222 S.W. 151; United States v. Yates, Tex.Civ.App., 204 S.W.2d 399, writ refused. See also, In re Jones, D.C., 42 F.2d 269; Vol. 27, Texas Jur., Sec. 37, page 500, where the rule is announced as follows: “The levy under a valid writ of attachment or execution places the property levied on within the custody of the law. It has, generally speaking, the effect of segregating that portion of the debtor’s property which is necessary to satisfy a money judgment against him.” The United States does not claim that the appellee failed to take any step to validate its writ of garnishment in conformity with the laws of Texas. In United States v. Yates, supra, it was held that an attachment lien filed according to law was specific, perfected and fixed upon the date of its levy and took priority, as of the date the writ was served, over a lien filed by the government for withholding and social security taxes filed subsequently thereto, but before the judgment of the court established and foreclosed the attachment lien. We think this decision correctly sets forth the law of Texas, regardless of what might be the law in other jurisdictions. The authorities cited by the government are clearly distinguishable on their facts and do not. at all support its contention that in Texas, a garnishing creditor’s rights in the property at the time of garnishment are “purely potential and contingent.” On this phase of the question the appellee furniture company must prevail.
This brings us to the second phase of the main controversy, whether the liens were specific and perfected under federal law. In the most recent Supreme Court, case, United States v. Gilbert Associates, 345 U.S. 361, 73 S.Ct. 701 the lien held by the Government under 26 U.S.C. (1946 ed.) § 3670 and an unperfected municipal tax lien which arose prior thereto were held to be “general” liens. In this situation and confronted with a lien of the same class the United States successfully claimed the benefit of another statute to give it priority,. § 3466 of the Revised Statutes, 31 U„ S.C. (1946 ed.) § 191, which provides:
"Whenever any person indebted to the United States is insolvent * * *, the debts due to the United States shall be first satisfied; * * But here the United States made no contention, so far as the record shows, that the tax debtors were insolvent and is content to refer to § 3466 as a “kindred matter.” See United States v. Security Trust & Sav. Bank, 340 U.S. 47, 71 S. Ct. 111, 113, 95 L.Ed. 53.
We do not at all agree with the Government that the Security Bank case is an authority here. The question there presented was whether a federal tax lien was prior in right to an attachment lien on property in California obtained under the California Code of Civil Procedure, where the attaching creditor had “merely a lis pendens notice that a right to perfect a lien exists” at the time when the tax liens of the United States were recorded. In that case the state court itself described the lien as inchoate and the Supreme Court accepted this classification as practically conclusive. In that sort of a situation the attachment lien is contingent, and the federal tax lien is not defeated by a contingent, inchoate lien prior in time. In the instant case a different situation is presented in that the Government here claims that its general tax lien is entitled to priority over the garnishment lien which was specific and perfected under Texas law before the second federal lien arose. If then the Security Bank case is not an authority here we think there is ample support for the District Court’s holding that “this case is ruled by the securing of the first lien [107 F.Supp. 405, 406]”. The following are but some of the many cases which recognize the universal principle of first in time, prior in right. Rankin v. Scott, 12 Wheat. 177, 179, 6 L.Ed. 592; Howard v. Railway, 101 U.S. 837, 25 L. Ed. 1081; United States v. City of Greenville, 4 Cir., 118 F.2d 963.
In Illinois ex rel. Gordon v. Campbell, supra the Supreme Court reviewed a number of its prior decisions under § 3466 and held that under the long-established rule there were three essentials which were crucial to determine whether the lien was specific and perfected, and these are “(1) the identity of the lienor, * * * (2) the amount of the lien, * * * and (3) the property to which it attaches * * It was held that the lien was not specific as to the property at the crucial time because it had not been definitely ascertained what property of the debtor was devoted to and used in his business and such property had not severed itself from the general and free assets of the owner, from which the claims of the United States were entitled to priority. We think the present case comes within the established rule. Here, the identity of the lienor was made certain, before the Government’s priority attached, by the filing of the garnishment proceeding on sworn accounts which fixed the amount of the lien. Here, there was never any question but that the property involved was definite and certain and it is clear that the levy under the writ of garnishment segregated a definite portion of the property from the debtor’s general estate. We therefore feel justified in acting on the assumption that the Supreme Court would hold that the priority set up in § 3466 supra, would not divest a specific and perfected garnishment lien, attached to specific property which indeed was in custodia legis when the federal lien arose. In a closely analogous case and in not dissimilar language we recently had occasion to discuss these selfsame principles and we adhere to the views therein expressed. United States v. Albert Holman Lumber Co., 5 Cir., 206 F.2d 685, rehearing denied 208 F.2d 133.
The only remaining issue is whether the District Court erred in allowing an attorney’s fee to the appellee insurance company. As to this little need be said, except that the allowance was authorized by the express 'terms of the applicable statute, Rule 677, Vernon’s Texas Rules of Civil Procedure (formerly Art. 4100, Vernon’s Ann.Civ.St.), and the authorities thereunder. Rosen-thal v. Frankfort Distillers Corp., 5 Cir., 193 F.2d 137; Sorenson v. City National Bank, 121 Tex. 478, 479, 49 S.W.2d 718; cf. 25 Tex.Jur., Sec. 11, page 62.
The judgment was right. It is
Affirmed.
. Art. 300, Vernon’s Ann.Giv.St., provides: “Attachment creates a lien “The execution of the writ of attachment upon any property of the defendant subject thereto, unless the writ should be quashed or otherwise vacated,
shall create a lien from the date of such levy on the real estate levied on and on snch personal property as remains in the hands of tho attaching officer, and on the proceeds of such personal property as may have been sold.”
Art. 301, Vernon’s Ann.Civ.St., provides in part:
“Judgment and foreclosure
“Should the plaintiff recover in the suit, such attachment lien shall be foreclosed as in case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment * *
Art. 4076, Vernon’s Ann.Civ.St., provides in part:
“Who may issue and when “The clerks of the district and county courts and justices of the peace may issue writs of garnishment, returnable to their respective courts, in the following cases:
“2. Where the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the defend-
ant has not within his knowledge property in his possession within this State, subject to execution, sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee. * * * ”■
“Art. 4084, Vernon’s Ann.Civ.St., provides in part:
“Effect of service of writ
“Prom and after the service of such writ of garnishment, it shall not be lawful for the garnishee to pay to the defendant any debt or to deliver to him any effects; nor shall the garnishee, if an incorporated or joint stock company in which the defendant is alleged to be the owner of shares or to have an interest, permit or recognize any sale or transfer of such shares or interest; and any such payment or delivery, sale or transfer, shall be void and of no effect as to so-much of said debt, effect, shares, or interest as may be necessary to satisfy the plaintiff’s demand. * * * ”
329 U.S. 362, 67 S.Ct. 347.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_r_fed | 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 "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
TRADERS’ TRUST CO. v. WAYNE. In re GEORGE R. JONES & CO., Inc.
(Circuit Court of Appeals, Fifth Circuit.
May 6, 1926.)
No. 4732.
Mortgages <S=»114 — Trust deed held Intended to secure indebtedness only to amount of $5,000.
Corporation’s trust deed, executed pursuant to resolution of board of directors, authorizing officers to establish a line of credit in the sum of $5,000, and to execute notes and renewal notes not to exceed that sum, held intended only to secure an indebtedness not to exceed $5,000, and creditor is not entitled to preferred claim in excess of that amount.
Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge.
In the matter of the bankruptcy of Geo. R. Jones & Co., Inc. From a judgment sustaining the objection of Clarence Wayne, trustee, to the secured claim of the Traders’ Trust Company in excess of $5,000, said Traders’ Trust Company appeals.
Affirmed.
Walter McElreath and Thomas Howell Scott, both of Atlanta, Ga., for appellant.
Leonard Haas, of Atlanta, Ga. (Underwood & Haas, of Atlanta, Ga., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
This is an ap-' peal from a judgment disallowing in part a claim of appellant as a secured debt against the estate of George R. Jones & Co., Inc., bankrupt. It appears that in May, 3923, the George R. Jones Company was indebted to the Decatur Bank & Trust Company in the sum of $5,000, represented by a note, and executed a deed of trust covering certain land to secure it. The material part of the deed is as follows:
“This deed is made to secure the payment of a debt, pursuant to the laws of Georgia in such ease made and provided, or any renewal of said debt, or any part thereof, which debt is evidenced by a certain promissory note bearing even date herewith for the sum of five thousand ($5,000.00) dollars, signed by Geo. R. Jones Company, Ine., bearing interest from date at the rate of eight (8%) per cent, per annum, and providing for the payment of ten (10) per cent, as attorney’s fees. This deed is intended, not only to secure the above-described note, but any other indebtedness that may be now or hereafter owing by the said Geo. R. Jones Company, Ine., to said bank, or any renewal of such indebtedness; the purpose and object of this deed being to secure a line of credit by said Geo. R. Jones Company, Inc., from said bank, so long as the same may be mutually agreeable to the parties hereto. This deed is executed pursuant to the following resolution passed by the directors of said Geo. R. Jones Company, Inc., to wit:
“ ‘Resolution.
“ ‘Resolved, That the officers of this corporation, to wit, George R. Jones Company, Ine., be and they are hereby authorized to arrange with the Decatur Bank & Trust Company for a line of credit from said bank to this corporation in the sum of five thousand dollars ($5,000.00), and to execute from time to time such notes as may be necessary to secure such hank for said sum or any part thereof, and to renew any such note or notes, and from time to time to sign new notes for additional sums advanced by said bank for this corporation, not exceeding at any time five thousand dollars ($5,000.00), ^nd said officers are also authorized to convey to said bank as security for any note or notes that may be executed by this corporation pursuant to this resolution, the following described land, to wit.’ ”
The George R. Jones .Company was adjudicated bankrupt in September, 1925. Prior to that time the Decatur .Bank & Trust Company had transferred certain > notes charged to the bankrupt, amounting to over $15,000, and its rights under the trust deed, to appellant, and that company filed a proof of debt as a secured claim to the amount of $14,772.48. The trastee objected to the allowance of the claim as secured in any amount exceeding $5,000, and the referee entered an order maintaining the contention of the trustee, which \ order was in turn approved, by the District Court. Appellant now contends that the-deed was intended to secure any indebtedness up to $10,000.
The only question presented for review is the construction of the deed of trust by the court below. We agree with the referee and the District Court in their construction of the deed of trust. Considering the provisions above quoted, including the resolution óf the company, it seems clear that it was the intention of the grantor to secure a line of credit at all times of $5,000, but not to secure any indebtedness exceeding that amount. The testimony of Jones, president, and Andrews, treasurer,. of the bankrupt, sustains this construction. In this connection it may be noted that the proof of debt filed by appellants shows only one note of $5,000 made by the Jones Company to the Decatur Bank & Trust Company. The other notes going to make up the amount claimed are either notes to the Jones Company, indorsed and discounted by it with the bank, or notes of the Jones Company to third persons, indorsed and discounted by them. It would be stretching the provisions of the deed of trust too far to say that it was the intention of the parties, when it was executed, that notes such as these were intended to be secured by it.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
sc_casesource | 113 | 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.
Sue EVENWELet al., Appellants
v.
Greg ABBOTT, Governor of Texas, et al.
No. 14-940.
Supreme Court of the United States
Argued Dec. 8, 2015.
Decided April 4, 2016.
William S. Consovoy, Arlingotn, VA, for Appellants.
Scott A. Keller, Solicitor General, for Appellees.
Ian H. Gershengornfor the United States, as amicus curiae, by special leave of the Court, supporting the Appellees.
Ken Paxton, Attorney General of Texas, Charles E. Roy, First Assistant, Attorney General, Office of the Attorney General, P.O., Austin, TX, Scott A. Keller, Solicitor General, Matthew H. Frederick, Deputy Solicitor General, Lisa Bennett, Assistant Solicitor General, for Appellees.
Meredith B. Parenti, Parenti Law PLLC, Houston, TX, William S. Consovoy, Thomas R. McCarthy, J. Michael Connolly, Consovoy McCarthy Park PLLC, Arlington, VA, for Appellants.
Justice GINSBURGdelivered the opinion of the Court.
Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs-appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces unequal districts when measured by voter-eligible population. Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens' votes in other districts. We hold, based on constitutional history, this Court's decisions, and longstanding practice, that a State may draw its legislative districts based on total population.
I
A
This Court long resisted any role in overseeing the process by which States draw legislative districts. "The remedy for unfairness in districting," the Court once held, "is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). "Courts ought not to enter this political thicket," as Justice Frankfurter put it. Ibid.
Judicial abstention left pervasive malapportionment unchecked. In the opening half of the 20th century, there was a massive population shift away from rural areas and toward suburban and urban communities. Nevertheless, many States ran elections into the early 1960's based on maps drawn to equalize each district's population as it was composed around 1900. Other States used maps allocating a certain number of legislators to each county regardless of its population. These schemes left many rural districts significantly underpopulated in comparison with urban and suburban districts. But rural legislators who benefited from malapportionment had scant incentive to adopt new maps that might put them out of office.
The Court confronted this ingrained structural inequality in Baker v. Carr, 369 U.S. 186, 191-192, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). That case presented an equal protection challenge to a Tennessee state-legislative map that had not been redrawn since 1901. See also id., at 192, 82 S.Ct. 691(observing that, in the meantime, there had been "substantial growth and redistribution" of the State's population). Rather than steering clear of the political thicket yet again, the Court held for the first time that malapportionment claims are justiciable. Id., at 237, 82 S.Ct. 691("We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.").
Although the Court in Baker did not reach the merits of the equal protection claim, Baker's justiciability ruling set the stage for what came to be known as the one-person, one-vote principle. Just two years after Baker, in Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court invalidated Georgia's malapportioned congressional map, under which the population of one congressional district was "two to three times" larger than the population of the others. Relying on Article I, § 2, of the Constitution, the Court required that congressional districts be drawn with equal populations. Id., at 7, 18, 84 S.Ct. 526. Later that same Term, in Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court upheld an equal protection challenge to Alabama's malapportioned state-legislative maps. "[T]he Equal Protection Clause," the Court concluded, "requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis." Ibid. Wesberry and Reynolds together instructed that jurisdictions must design both congressional and state-legislative districts with equal populations, and must regularly reapportion districts to prevent malapportionment.
Over the ensuing decades, the Court has several times elaborated on the scope of the one-person, one-vote rule. States must draw congressional districts with populations as close to perfect equality as possible. See Kirkpatrick v. Preisler, 394 U.S. 526, 530-531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). But, when drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them, preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. See Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Where the maximum population deviation between the largest and smallest district is less than 10%, the Court has held, a state or local legislative map presumptively complies with the one-person, one-vote rule. Ibid. Maximum deviations above 10% are presumptively impermissible. Ibid. See also Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973)(approving a state-legislative map with maximum population deviation of 16% to accommodate the State's interest in "maintaining the integrity of political subdivision lines," but cautioning that this deviation "may well approach tolerable limits").
In contrast to repeated disputes over the permissibility of deviating from perfect population equality, little controversy has centered on the population base jurisdictions must equalize. On rare occasions, jurisdictions have relied on the registered-voter or voter-eligible populations of districts. See Burns v. Richardson, 384 U.S. 73, 93-94, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966)(holding Hawaii could use a registered-voter population base because of "Hawaii's special population problems"-in particular, its substantial temporary military population). But, in the overwhelming majority of cases, jurisdictions have equalized total population, as measured by the decennial census. Today, all States use total-population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way.
B
Appellants challenge that consensus. After the 2010 census, Texas redrew its State Senate districts using a total-population baseline. At the time, Texas was subject to the preclearance requirements of § 5 of the Voting Rights Act of 1965. 52 U.S.C. § 10304(requiring jurisdictions to receive approval from the U.S. Department of Justice or the U.S. District Court for the District of Columbia before implementing certain voting changes). Once it became clear that the new Senate map, S148, would not receive preclearance in advance of the 2012 elections, the U.S. District Court for the Western District of Texas drew an interim Senate map, S164, which also equalized the total population of each district. See Davis v. Perry, No. SA-11-CV-788, 2011 WL 6207134 (Nov. 23, 2011). On direct appeal, this Court observed that the District Court had failed to "take guidance from the State's recently enacted plan in drafting an interim plan," and therefore vacated the District Court's map. Perry v. Perez, 565 U.S. ----, ----, ---- - ----, 132 S.Ct. 934, 940-942, 943-944, 181 L.Ed.2d 900 (2012)(per curiam ).
The District Court, on remand, again used census data to draw districts so that each included roughly the same size total population. Texas used this new interim map, S172, in the 2012 elections, and, in 2013, the Texas Legislature adopted S172 as the permanent Senate map. See App. to Brief for Texas Senate Hispanic Caucus et al. as Amici Curiae 5 (reproducing the current Senate map). The permanent map's maximum total-population deviation is 8.04%, safely within the presumptively permissible 10% range. But measured by a voter-population baseline-eligible voters or registered voters-the map's maximum population deviation exceeds 40%.
Appellants Sue Evenwel and Edward Pfenninger live in Texas Senate districts (one and four, respectively) with particularly large eligible- and registered-voter populations. Contending that basing apportionment on total population dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause, appellants filed suit in the U.S. District Court for the Western District of Texas. They named as defendants the Governor and Secretary of State of Texas, and sought a permanent injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district.
The case was referred to a three-judge District Court for hearing and decision. See 28 U.S.C. § 2284(a); Shapiro v. McManus, 577 U.S. ----, ---- - ----, 136 S.Ct. 450, 454-456, 193 L.Ed.2d 279 (2015). That court dismissed the complaint for failure to state a claim on which relief could be granted. Appellants, the District Court explained, "rel[y] upon a theory never before accepted by the Supreme Court or any circuit court: that the metric of apportionment employed by Texas (total population) results in an unconstitutional apportionment because it does not achieve equality as measured by Plaintiffs' chosen metric-voter population." App. to Juris. Statement 9a. Decisions of this Court, the District Court concluded, permit jurisdictions to use any neutral, nondiscriminatory population baseline, including total population, when drawing state and local legislative districts. Id., at 13a-14a.
We noted probable jurisdiction, 575 U.S. ----, 136 S.Ct. 381, 193 L.Ed.2d 288 (2015), and now affirm.
II
The parties and the United States advance different positions in this case. As they did before the District Court, appellants insist that the Equal Protection Clause requires jurisdictions to draw state and local legislative districts with equal voter-eligible populations, thus protecting "voter equality," i.e., "the right of eligible voters to an equal vote." Brief for Appellants 14. To comply with their proposed rule, appellants suggest, jurisdictions should design districts based on citizen-voting-age-population (CVAP) data from the Census Bureau's American Community Survey (ACS), an annual statistical sample of the U.S. population. Texas responds that jurisdictions may, consistent with the Equal Protection Clause, design districts using any population baseline-including total population and voter-eligible population-so long as the choice is rational and not invidiously discriminatory. Although its use of total-population data from the census was permissible, Texas therefore argues, it could have used ACS CVAP data instead. Sharing Texas' position that the Equal Protection Clause does not mandate use of voter-eligible population, the United States urges us not to address Texas' separate assertion that the Constitution allows States to use alternative population baselines, including voter-eligible population. Equalizing total population, the United States maintains, vindicates the principle of representational equality by "ensur[ing] that the voters in each district have the power to elect a representative who represents the same number of constituents as all other representatives." Brief for United States as Amicus Curiae 5.
In agreement with Texas and the United States, we reject appellants' attempt to locate a voter-equality mandate in the Equal Protection Clause. As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts.
A
We begin with constitutional history. At the time of the founding, the Framers confronted a question analogous to the one at issue here: On what basis should congressional districts be allocated to States? The Framers' solution, now known as the Great Compromise, was to provide each State the same number of seats in the Senate, and to allocate House seats based on States' total populations. "Representatives and direct Taxes," they wrote, "shall be apportioned among the several States which may be included within this Union, according to their respective Numbers." U.S. Const., Art. I, § 2, cl. 3(emphasis added). "It is a fundamental principle of the proposed constitution," James Madison explained in the Federalist Papers, "that as the aggregate number of representatives allotted to the several states, is to be... founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each state, is to be exercised by such part of the inhabitants, as the state itself may designate." The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds. 2001). In other words, the basis of representation in the House was to include all inhabitants-although slaves were counted as only three-fifths of a person-even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives. Endorsing apportionment based on total population, Alexander Hamilton declared: "There can be no truer principle than this-that every individual of the community at large has an equal right to the protection of government." 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911).
When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Concerned that Southern States would not willingly enfranchise freed slaves, and aware that "a slave's freedom could swell his state's population for purposes of representation in the House by one person, rather than only three-fifths," the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population. J.
Sneed, Footprints on the Rocks of the Mountain: An Account of the Enactment of the Fourteenth Amendment 28 (1997). See also id., at 35 ("[T]he apportionment issue consumed more time in the Fourteenth Amendment debates than did any other topic.").
In December 1865, Thaddeus Stevens, a leader of the Radical Republicans, introduced a constitutional amendment that would have allocated House seats to States "according to their respective legal voters"; in addition, the proposed amendment mandated that "[a] true census of the legal voters shall be taken at the same time with the regular census." Cong. Globe, 39th Cong., 1st Sess., 10 (1866). Supporters of apportionment based on voter population employed the same voter-equality reasoning that appellants now echo. See, e.g., id., at 380 (remarks of Rep. Orth) ("[T]he true principle of representation in Congress is that voters alone should form the basis, and that each voter should have equal political weight in our Government...."); id., at 404 (remarks of Rep. Lawrence) (use of total population "disregards the fundamental idea of all just representation, that every voter should be equal in political power all over the Union").
Voter-based apportionment proponents encountered fierce resistance from proponents of total-population apportionment. Much of the opposition was grounded in the principle of representational equality. "As an abstract proposition," argued Representative James G. Blaine, a leading critic of allocating House seats based on voter population, "no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot." Id., at 141. See also id., at 358 (remarks of Rep. Conkling) (arguing that use of a voter-population basis "would shut out four fifths of the citizens of the country-women and children, who are citizens, who are taxed, and who are, and always have been, represented"); id., at 434 (remarks of Rep. Ward) ("[W]hat becomes of that large class of non-voting tax-payers that are found in every section? Are they in no matter to be represented? They certainly should be enumerated in making up the whole number of those entitled to a representative.").
The product of these debates was § 2 of the Fourteenth Amendment, which retained total population as the congressional apportionment base. See U.S. Const., Amdt. 14, § 2("Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."). Introducing the final version of the Amendment on the Senate floor, Senator Jacob Howard explained:
"[The] basis of representation is numbers...; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime.... The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution." Cong. Globe, 39th Cong., 1st Sess., 2766-2767 (1866).
Appellants ask us to find in the Fourteenth Amendment's Equal Protection Clause a rule inconsistent with this "theory of the Constitution." But, as the Court recognized in Wesberry, this theory underlies not just the method of allocating House seats to States; it applies as well to the method of apportioning legislative seats within States. "The debates at the [Constitutional] Convention," the Court explained, "make at least one fact abundantly clear: that when the delegates agreed that the House should represent 'people,' they intended that in allocating Congressmen the number assigned to each state should be determined solely by the number of inhabitants." 376 U.S., at 13, 84 S.Ct. 526. "While it may not be possible to draw congressional districts with mathematical precision," the Court acknowledged, "that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives." Id., at 18, 84 S.Ct. 526(emphasis added). It cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.
Cordoning off the constitutional history of congressional districting, appellants stress two points. First, they draw a distinction between allocating seats to States, and apportioning seats within States. The Framers selected total population for the former, appellants and their amici argue, because of federalism concerns inapposite to intrastate districting. These concerns included the perceived risk that a voter-population base might encourage States to expand the franchise unwisely, and the hope that a total-population base might counter States' incentive to undercount their populations, thereby reducing their share of direct taxes. Wesberry, however, rejected the distinction appellants now press. See supra, at 1128 - 1129. Even without the weight of Wesberry, we would find appellants' distinction unconvincing. One can accept that federalism-or, as Justice ALITO emphasizes, partisan and regional political advantage, see post, at 1145 - 1149-figured in the Framers' selection of total population as the basis for allocating congressional seats. Even so, it remains beyond doubt that the principle of representational equality figured prominently in the decision to count people, whether or not they qualify as voters.
Second, appellants and Justice ALITO urge, see post, at 1144 - 1145, the Court has typically refused to analogize to features of the federal electoral system-here, the constitutional scheme governing congressional apportionment-when considering challenges to state and local election laws. True, in Reynolds, the Court rejected Alabama's argument that it had permissibly modeled its State Senate apportionment scheme-one Senator for each county-on the United States Senate. "[T]he federal analogy," the Court explained, "[is] inapposite and irrelevant to state legislative districting schemes" because "[t]he system of representation in the two Houses of the Federal Congress" arose "from unique historical circumstances." 377 U.S., at 573-574, 84 S.Ct. 1362. Likewise, in Gray v. Sanders, 372 U.S. 368, 371-372, 378, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), Georgia unsuccessfully attempted to defend, by analogy to the electoral college, its scheme of assigning a certain number of "units" to the winner of each county in statewide elections.
Reynolds and Gray, however, involved features of the federal electoral system that contravene the principles of both voter and representational equality to favor interests that have no relevance outside the federal context. Senate seats were allocated to States on an equal basis to respect state sovereignty and increase the odds that the smaller States would ratify the Constitution. See Wesberry, 376 U.S., at 9-13, 84 S.Ct. 526(describing the history of the Great Compromise). See also Reynolds, 377 U.S., at 575, 84 S.Ct. 1362("Political subdivisions of States-counties, cities, or whatever-never were and never have been considered as sovereign entities.... The relationship of the States to the Federal Government could hardly be less analogous."). "The [Electoral] College was created to permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large." Williams v. Rhodes, 393 U.S. 23, 43-44, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)(Harlan, J., concurring in result). See also Gray, 372 U.S., at 378, 83 S.Ct. 801("The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality." (footnote omitted)). By contrast, as earlier developed, the constitutional scheme for congressional apportionment rests in part on the same representational concerns that exist regarding state and local legislative districting. The Framers' answer to the apportionment question in the congressional context therefore undermines appellants' contention that districts must be based on voter population.
B
Consistent with constitutional history, this Court's past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Quoting language from those decisions that, in appellants' view, supports the principle of equal voting power-and emphasizing the phrase "one-person, one-vote"-appellants contend that the Court had in mind, and constantly meant, that States should equalize the voter-eligible population of districts. See Reynolds, 377 U.S., at 568, 84 S.Ct. 1362("[A]n individual's right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State."); Gray, 372 U.S., at 379-380, 83 S.Ct. 801("The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications."). See also Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U.S. 50, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970)( "[W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials."). Appellants, however, extract far too much from selectively chosen language and the "one-person, one-vote" slogan.
For every sentence appellants quote from the Court's opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality. In Reynolds, for instance, the Court described "the fundamental principle of representative government in this country" as "one of equal representation for equal numbers of people." 377 U.S., at 560-561, 84 S.Ct. 1362. See also Davis v. Bandemer, 478 U.S. 109, 123, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986)("[I]n formulating the one person, one vote formula, the Court characterized the question posed by election districts of disparate size as an issue of fair representation."); Reynolds, 377 U.S., at 563, 84 S.Ct. 1362(rejecting state districting schemes that "give the
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122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer: |
songer_genresp1 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
Michael Joseph FALLON, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction; Bill Clinton, Governor; W.H. Sargent, Warden, Cummins Unit; William M. Stricklin, Chairman; Jerry Gasaway; Robert Clark, ADC Publications Review Committee; James L. Mason, Chairman; Morris H. Dreher; David C. McClinton; Hezekiah D. Stewart, Jr., Rev.; Henry Oliver; Mike Gaines; Larry Morris, Arkansas Department of Correction Board, Appellees.
No. 90-2441.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 18, 1990.
Decided Nov. 26, 1990.
Michael Joseph Fallon, appellant pro se.
Appellees were not represented by counsel.
Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.
PER CURIAM.
Michael J. Fallon, an Arkansas inmate, appeals from the district court’s judgment dismissing as legally frivolous his 42 U.S.C. § 1983 action prior to service of process. Concluding that no error of law appears in the record, we affirm on the basis of the district court’s order, which adopted the magistrate’s findings and recommendation. See 8th Cir. Rule 47B.
. The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas.
. The Honorable John F. Forster, Jr., United States Magistrate for the Eastern District of Arkansas.
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_direct2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. 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.
Joseph F. BENT, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 17700.
United States Court of Appeals Eighth Circuit.
Feb. 2, 1965.
Joseph F. Bent, Jr., pro se.
F. Russell Millin, U. S. Atty., Kansas-City, Mo., and Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., filed' brief for appellee.
Before JOHNSEN, Chief Judge, and' VOGEL and BLACKMUN, Circuit-Judges.
PER CURIAM.
Joseph F. Bent, Jr., now an inmate of Leavenworth, appeals in forma pauperis from an order denying his motion under 28 U.S.C. § 2255 “to vacate judgments,, convictions and sentences”.
The appellant’s federal judicial history must be recited:
1. In May 1946 a 3-eount indictment was returned in the Western District of' Missouri against Bent, then 18 years, of age, William Amos Jones, and Bent’s-cousin, Thomas Andrew Collins, for violations of 18 U.S.C. (1940 Ed.) § 320-(now 18 U.S.C. § 2114). Count I charged Bent and Jones with robbery of' a clerk in charge of a substation of the-Kansas City, Missouri, post office of' money belonging to the United States,. and charged Collins with aiding and abetting in that robbery. Count II charged Bent and Jones with placing the victim’s life in jeopardy by the use of ‘a dangerous weapon, and charged Collins with aiding and abetting this. Count III charged the three with unlawful conspiracy to commit the robbery and with the commission of stated overt acts pursuant to that conspiracy.
All three defendants initially entered pleas of not guilty. Each was represented by separate retained counsel. When the eases were called for trial, Bent and Jones changed their pleas on Counts I and III to guilty and, after an unsuccessful attempt to plead nolo contendere on Count II, reserved a further plea oh that charge. Collins went to trial first and separately. He waived a jury, was tried to the court, and was acquitted on all counts. Bent testified as a government witness at that trial. Upon Collins’ acquittal Bent and Jones again entered pleas of not guilty on Count II. They waived a jury and were tried to the court. Bent took the stand in his own defense. He and Jones were found guilty by the late Judge Collet. In July 1946 the court gave both Bent and Jones the mandatory 25 year sentence on Count II prescribed by § 320, and a sentence of one year and a day on each of Counts I and III. The two shorter sentences were both to run concurrently with the longer sentence. This made a total of 25 years.
2. In September 1948, after the shorter sentences had been served, Bent, with different counsel, filed a motion under Rule 35, F.R.Cr.P., for the correction of the sentence on Count II. This was directed primarily to the claimed insufficiency of that count. The motion was sustained by the district court and both Bent and Jones were discharged from custody in December. The government appealed. This court, while recognizing that Count II was somewhat defective in its language, reversed and directed the district court to order the apprehension of Bent and Jones and their restoration to proper custody. United States v. Bent, 175 F.2d 397 (8 Cir. 1949), cert. denied 338 U.S. 829, 70 S. Ct. 79, 94 L.Ed. 504.
3. Almost four years elapsed from his release before Bent was finally apprehended in October 1952.
4. In December 1961 Bent on his own behalf filed a § 2255 motion to vacate and set aside his sentence. This was on the theory that Count II was defective because it failed to provide him with information essential to the preparation of his defense and thereby deprived him of Sixth Amendment rights. The district court denied this motion. We affirmed. Bent v. United States, 308 F.2d 585 (8 Cir.1962), cert. denied 373 U.S. 917, 83 S.Ct. 1307, 10 L.Ed.2d 416.
5. In October 1963 Bent, by retained counsel, filed his current § 2255 motion. By this he now seeks to set aside his guilty pleas on Counts I and III of the 1946 indictment and the convictions on all three counts on a number of grounds: (a) that these pleas were involuntary, were made without knowledge of their consequences and “were treated by the Court as abandoned, since merged in Count 2”; (b) that he and his counsel did not know that his pleas of guilty to Counts I and III would “piece out the fatal defects in pleading and proof in Count 2, as later was declared in the opinion of the United States Court of Appeals”; (c) that he did not know that they included an admission that he had robbed the clerk of government money; (d) that, without these pleas, Count II stated no offense; and (e) that Count II recited no offense and was supported by no evidence “involving jeopardy”.
Judge Duncan held a full hearing in January 1964. Bent was produced and testified but presented no other evidence. His motion was then denied. Thereafter Bent’s counsel, at Bent’s request, was permitted to withdraw.
Appellant’s contention that he did not know that his pleas of guilty to Counts I and III constituted an admission that he robbed the clerk of government money is untenable. First of all, these counts, which are reproduced in full in the footnote on pp. 398-99 of 175 F.2d, clearly specified robbery of the named clerk of “lawful money belonging to the United States”. What Bent is saying here, basically, is that he intended to rob only a drug store and not a postal substation, even though the drug store contained the substation. He has consistently admitted — by his testimony at Collins’ trial, by his briefs, and by his testimony at the hearing on the present motion — that he intended to rob the drug store and did rob it, that he used a gun on the clerk in effecting that robbery, and that he forced the clerk to open his safe’s inner drawer from which he took two paper sacks. The clerk testified at Collins’ trial that the currency which was in one of those sacks and which was taken was government property and that he told Bent so during the robbery. And at the hearing below it was conceded that whether Bent knew that the establishment he intended to rob was a post office was immaterial. This court pointed out in Lockhart v. United States, 293 F.2d 314, 316 (8 Cir.1961), cert. denied 368 U.S. 1003, 82 S.Ct. 636, 7 L.Ed.2d 541, that the statute is concerned with a robbery committed against “any person having lawful charge, control or custody” of government property, and that it was even immaterial in what task the clerk might have been engaged at the time the defendant entered the store. Bent’s protestations of restricted intent as to drug store property, as distinguished from government property, are unconvincing and of no legal consequence in any event, and serve to make this particular contention legally frivolous.
The appellant’s argument that Count II recited nothing involving jeopardy is equally frivolous and for the same reasons. And his contention that Count II stated no offense is repetitive of his 1948 motion. We pointed out in Bent’s own case, p. 586 of 308 F.2d, supra, as we so often must do, that “Under the express provisions of § 2255, the sentencing court is not required to entertain successive motions for similar relief”. This issue was decided in 1949 and is at rest.
Bent’s remaining contentions, while perhaps of some theoretical appeal to him, and possibly a little ingenious, possess no merit. These, after the ever-recurring preliminary general comments as to incompetency of trial counsel, youth and lack of education, the absence of jury trial, and the like, come down to the proposition that he and his trial counsel could not have known that his guilty pleas on Counts I and III would be utilized by this court to remedy a defect in the language of Count II, that those pleas were therefore involuntary in that they were made without full knowledge of this consequence, and that the entire case against him collapses accordingly.
All this may well amount to nothing more than saying in a different way what Bent has already said before and unsucessfully. In any event, it is completely answered by an observant reading of our opinion at 175 F.2d 397. We there recognized that Count II was poorly drafted because it failed to include the statute’s provision that the jeopardizing of the clerk’s life by a dangerous weapon be “in effecting * * * such robbery”. But we definitely did not hold that that omission in the charging language of Count II was cured by the self-convictions effected by the pleas to Counts I and III. What we held was that the subject matter of the entire indictment was the carefully specified Kansas City robbery and that Bent, therefore, could have had no possible misapprehension about the fact that he was being charged with that robbery and with effecting the required jeopardy in committing that robbery. We said, pp. 401-02:
“[T]he indictment in controversy gave to Bent and Jones all the information they needed and much more than they wanted. They, of course, knew what the indictment meant. * * *
“Despite its defects, we think that count II of the indictment was sufficiently informative, when read in the light of the applicable statute to which the indictment referred, the subject matter of the other counts, and the indictment as a whole, to support the sentences imposed upon the defendants. * * * The second count should be construed to mean what the defendants, their counsel, and the trial court construed it to mean when Bent and Jones entered their pleas of not guilty, were tried, and were sentenced. There is, we think, no logic or justification in punishing poor, but non-prejudicial, criminal pleading by releasing a guilty defendant.”
There is nothing in this language which constitutes a use of the pleas to fill a pleading gap in Count II. We used the indictment, but not the pleas. Those pleas had nothing to do with our decision as to Count II. If the final pleas to Counts I and III had been not guilty, the result as to Count II still would have been the same, namely, that it sufficiently stated an offense. See Wheeler v. United States, 317 F.2d 615, 616 (8 Cir. 1963).
Finally, Bent’s comments about abandonment and merger necessarily fall with the rest of his argument. The sentences under Counts I and III have long since been served and are not now subject to collateral attack under § 2255. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Kistner v. United States, 332 F.2d 978, 979 (8 Cir.1964); Redfield v. United States, 315 F.2d 76, 80 (9 Cir. 1963), cert. denied 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550.
We note for the record that the transcript of the 1946 trial was before the district court at the 1964 hearing. We, too, have carefully reviewed it. It demonstrates the absence of misapprehension on Bent’s part and serves conclusively to buttress our decision here.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_judgdisc | 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 ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
GREAT AMERICAN INSURANCE COMPANY, a Corporation, Appellant, v. BANK OF BELLEVUE and American Home Assurance Company, Appellees.
No. 18226.
United States Court of Appeals Eighth Circuit.
Sept. 27, 1966.
Benjamin M. Wall, of Haney, Walsh & Wall, Omaha, Neb., for appellant.
L. R. Brodkey, Omaha, Neb., for appellee Bank of Bellevue. Charles S. Reed, Omaha, Neb., with him on the brief.
Before VAN OOSTERHOUT, BLACKMUN and GIBSON, Circuit Judges.
GIBSON, Circuit Judge.
This is an appeal from the judgment of the United States District Court for the District of Nebraska, rendered in an interpleader action commenced by plaintiff, Great American Insurance Company, a corporation of New York, against numerous defendants of diverse citizen,ship^_pursuant to 28 U.S.C. § 1335.
Plaintiff (appellant herein), Great American Insurance Company, issued and was surety on a used car dealer’s bond required by Nebraska law to cover the 1962 business activities of one Harry Layne, d/b/a Layne Motor Company of Bellevue, Nebraska. This bond, which is the subject matter of this interpleader action, had a face penalty of $10,000 and was effective from January 1, 1962 through December 31, 1962. In addition to this bond it appears that plaintiff was surety on at least one other bond which was issued to cover the business activities of Layne for the year 1961. This second bond, however, was not mentioned in the interpleader complaint nor in any of plaintiff’s supporting papers.
During the years 1961 and 1962, Layne engaged in numerous fraudulent transactions relating to the sale and financing of automobiles. As the result of Layne’s fraudulent activities, plaintiff was beset with numerous claims, the total of which exceeded $10,000. One of the claimants was defendant Bank of Bellevue. American Home Assurance Company is an insurer of the Bank of Bellevue and is a claimant in this suit by virtue of its right of subrogation on amounts it paid to the Bank of Bellevue because of the Bank’s losses on some of Layne’s activities. At this juncture, plaintiff interpleaded all of the known and unknown claimants, admitted liability under the 1962 bond and paid the face amount of the single $10,000 bond into court. The answers to this bill of interpleader set forth the various claims the defendants had against Layne. Plaintiff presented the affidavit of Ronald Hartman, State Agent for plaintiff, which stated that his Company, “has not issued any bond other than the one referred to * * Thereafter, plaintiff’s motion for summary judgment was granted and plaintiff’s liability on this bond in the order of summary judgment was specifically limited to the $10,000 amount deposited with the Court.
After the summary judgment, the individual claimants began to resolve their individual claims to the deposited fund. In the course of the discussion it was discovered that two of the transactions between Layne and the Bank of Bellevue actually originated in 1961 and would, therefore, not be covered in the pleaded bond for 1962. The parties defendant, being all of the claimants to the fund, therefore stipulated, amongst themselves but not with the plaintiff, that the two claims arising from the 1961 transaction be dismissed without prejudice to seek relief under “any bond other than the one named in plaintiff’s complaint.” This stipulation was approved by the District Court and incorporated in its final judgment. Plaintiff objected to the dismissal without prejudice of the two claims here in issue, and appeals from that portion of the District Court’s judgment.
Plaintiff’s first argument on appeal is that since its interpleader complaint alleged the 1962 bond and set forth the transactions in question, the failure of appellees to deny that the transactions fell under the coverage of the 1962 bond constituted a judicial admission binding them to seek satisfaction only under the 1962 bond. Therefore, according to plaintiff, the subsequent dismissal without prejudice to these claims was error.
We cannot agree with appellant’s interpretation of these pleadings. Plaintiff pleaded the single 1962 bond and tendered the $10,000 penalty into court. In filing its interpleader, plaintiff set forth the various claims being made against it. It did not attempt to contest the validity of the claims asserted. Plaintiff pleaded, moreover, that it was not concerned as to the disposition of these claims so long as the recovery against the 1962 bond did not exceed the amount paid into court, and that it was merely “a disinterested stakeholder, * * * indifferent to the respective claims thereto of the defendants.” In granting the summary judgment, the Court afforded plaintiff the exact relief it sought. Nowhere did plaintiff indicate that should relief be denied on these claims under the 1962 bond, it was not to be held liable under any other bond issued for another year.
Likewise, the various answers set forth claims which defendants believed to be covered by the pleaded bond. They no doubt recognized the possibility that these claims may or may not be allowable under the terms of the bond pleaded. In alleging these claims, nowhere did the defendants intimate that should these claims fail because they originated outside the life span of the pleaded bond, no further relief on other non-pleaded bonds could be sought. Plaintiff’s interpleader related solely to the 1962 bond, and plaintiff expressly maintained its neutrality in the settlement of the claims. The answers to this complaint merely set forth the claims under the bond and did not indicate that the pleaded bond was the sole source of relief. Therefore, we do not believe these pleadings should be construed to indicate admissions of coverage that would preclude the dismissing of the claims without prejudice to seek relief from other funds not deposited under the 1962 bond.
Even were we to assume, arguendo, that the face of these pleadings indicated an admission on the part of the defendants that their loss occurred in 1962, we do not believe plaintiff should be granted the relief it is seeking.
The primary step in an inter-pleader proceeding concerns the determination of a fundholder’s right to compel claimants to litigate their numerous claims in one proceeding and to confine total recovery to an amount not exceeding the deposited fund. Standard Surety & Casualty Company, of New York v. Baker, 105 F.2d 578 (8 Cir. 1939): As far as the plaintiff is concerned, the sole purpose of this interpleader is to protect it from multiple litigation which may result in losses in excess of the face penalty on the bond. Douglas-Guardian Warehouse Corporation v. Ramy Seed Company, 271 F.2d 24 (8 Cir. 1959); Barron & Holtzoff, 2 Federal Practice and Procedure, § 551 at page 227 (Wright Ed. 1961).
Interpleader is an equitable action controlled by equitable principles, Burchfield v. Bevans, 242 F.2d 239 (10 Cir. 1957); Brinson v. Brinson, 334 F.2d 155 (4 Cir. 1964), and the equitable doctrine that one seeking equitable relief must do equity and come into court with clean hands is applicable. Austin v. Texas-Ohio Gas Company, 218 F.2d 739 (5 Cir. 1955). Plaintiff has not complied with these doctrines. The affidavit of plaintiff’s agent, Ronald Hartman, stating that the plaintiff, “has not issued any bond other than the one referred to under the terms and provisions of Section 60-619, R.R.S.Nebraska, 1943,” is not only misleading but appears to constitute an outright falsehood. A full and fair disclosure by the plaintiff, as is required of one seeking the exercise of the equitable powers of a court would have disclosed the full fund held by the plaintiff and the maximum coverage on all bonds issued by the plaintiff that could be applicable to Layne’s activities. The various claimants to the fund could then be compelled to respond thereto and plaintiff could be accorded complete protection to the full extent requested.
Interpleader being a remedy solely for the protection of the stakeholder, it may not be used by the stakeholder as a weapon to defeat recovery from funds other than the one before the court. Nonetheless, plaintiff is seeking to do just that.
Plaintiff is the only party in a position to know the exact bonding arrangement between itself and Layne. No mention, however, is made of the existence of other bonds or the possibility of its liability outside the time limits of the single pleaded bond. If there are other bonds to which claims might be made, the benefit to plaintiff of limiting recovery to the single bond through skillful use of the interpleader is obvious. In attempting to do just that, an interpleader complaint can be worded in such a way that a normal responsive pleading thereto from a claimant unaware of the existence of other funds would arm the plaintiff with an argument that the claimants had committed themselves to seeking relief only under the single pleaded fund. Certainly, a procedure which permits the virtual “trapping” of a claimant is not a proper use of this equitable remedy.
Furthermore, we observe that the Bank and American Home Assurance Company are holding claims that arose from transactions taking place partly in the year that the pleaded bond was in force and partly in a prior year. Not knowing the existence of other bonds and not being able to accurately conclude to which year their claim was applicable, these claimants were faced with a real danger of losing satisfaction on their claims unless they responded, alleging coverage of the pleaded bond and then litigating the issues. If we were to accept plaintiff’s position, we would be holding that defendants must assert their claim under the peril that should they be disallowed as not arising in 1962 they will forever be barred from seeking relief under a 1961 bond, if and when such bond is discovered. We do not believe the proper use of an interpleader bill should place claimants in such an inequitable dilemma.
Plaintiff is arguing herein that defendants should have pleaded the 1961 bond in answer to the bill brought by plaintiff in order to avoid limiting their claims to the 1962 bond. Plaintiff has not explained how the claimants were supposed to learn of the existence of the 1961 bond. Plaintiff was the only party with knowledge of its existence, and its papers certainly did nothing to disclose this fact. Even if we assume defendants, in fact, knew of the other bond, the burden should not be placed on them to bring this additional fund into the dispute. As between plaintiff and the fund claimants, the only issue is the right to interplead, while, as between the claimants, the issue is, who is entitled to the fund and in what proportions. The only litigious issue presented between the plaintiff and claimants is the right to compel interpleader. This was done as to the 1962 fund. The plaintiff under its pleadings stands impartial between claimants and cannot urge the claims of certain impleaded defendants against others. As set out in 48 C.J.S. Inter-pleader § 37, page 89:
“Claims of defendants against plaintiff cannot be put in issue in the inter-pleader suit; the amount of the fund or matter in the hands of the complainant, on which hostile claims are alleged to.have been made, must be taken to be as stated by the complainant, and cannot be controverted by the answers for the purpose of having it adjudicated * *
If plaintiff desired its liability under the other bond settled in this one suit, the burden was upon it to so petition the Court, and deposit the appropriate amount. Plaintiff only demanded litigation of the claims against the 1962 bond, and that is all it is entitled to receive. The law will not allow an interpleader to avoid its liability on funds not pleaded and not before the court by the back door method here urged. Austin v. Texas-Ohio Gas Company, 218 F.2d 789, 745-746 (5 Cir. 1955).
The trial court followed the proper course when it discovered that these transactions actually transpired a few days prior to the effective date of the pleaded bond. In all fairness to the other claimants these two claims had to be dismissed. Likewise, in all fairness to the defendants, The Bank of Bellevue and American Home Assurance Company, the claims had to be dismissed without prejudice to their seeking relief from other sources available.
Plaintiff’s second allegation of error is closely tied with the above discussion. Plaintiff contends the judgment of the District Court deprived it of the benefit of its interpleader. Again, we must disagree. The bill only alleged the 1962 bond of $10,000. The liability and the claim against the bond have been completely settled. Plaintiff is protected by the judgment against any more claims being presented against this particular bond. Plaintiff received all the relief prayed for, as it did not plead bonds other than the 1962 bond and pay into court funds for other years as it is required to do in order to discharge its liability for other years.
As we said above, if plaintiff wanted to resolve all its liability it should have presented the other bond and forced the litigants to resolve their differences concerning the additional bond. Having chosen not to do this, plaintiff must abide by that choice and, therefore, cannot demand protection from suits against these unpleaded funds.
The District Court’s order of summary judgment in favor of the plaintiff, accepting the interpleader action and discharging plaintiff from further liability under the policy pleaded, was interlocutory under Rule 54(b), Fed.R.Civ.P. Republic of China v. American Express Co., Inc., 190 F.2d 334, 338-339 (2 Cir. 1951). The experienced Trial Judge correctly, in the interest of justice, confined the final judgment to losses applicable to the 1962 bond, giving plaintiff full protection on all losses properly applied against that bond, but allowing these defendantappellees who had losses which originated in a prior year free to pursue whatever remedies that might be available to them.
The judgment in all respects is affirmed.
. Pertinent part of § 1335 reads: “Interpleader
“(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of inter-pleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, * * *
“(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, * * *.” See also Rule 22, Fed.R.Civ.P.
. The Bank’s claim was on a promissory note made by Layne on December 4, 1961, secured by a chattel mortgage, which note was subsequently extended to March 17, 1962 and May 4, 1962. Layne promised to deliver title to the mortgaged automobiles but, in fact, never had title.
The American Home Assurance Company claim was based on a promissory note of Layne’s, dated December 21, 1961 and made payable to the Bank and secured by a chattel mortgage on two automobiles. Partial payment was made on this note and subsequent extension notes were issued under date of March 17, 1962 and May 4, 1962, secured by one of the two automobiles originally mortgaged. Layne delivered title to the mortgaged automobile to the Bank but the chattel mortgage was not recorded. Layne disposed of the mortgaged automobile after securing a duplicate title. The Bank’s resulting loss was covered by a non-filing or chattel lien policy issued by the American Home Assurance Company, which Company, upon the payment of this loss, became subrogated to the Bank’s rights against Layne on this particular transaction.
. We recognize that plaintiff under the statutory interpleader provided by § 1335 of Title 28, U.S.C. and Rule 22, Fed.R.Civ.P. may have an interest in the fund and may oppose the contention of claimants to the fund. Here, however, the plaintiff has filed its action as a strict bill of interpleader, alleging that it is merely a stakeholder and has no interest in the distribution of the fund, though it could have filed an action in the nature of a bill of interpleader alleging its interest in the distribution of the fund and in attempting to confine all claimants to a recovery under the 1962 bond. If this latter procedure were followed, however, it would be essential that plaintiff make full disclosure of the entire fund in its hands and assert its interest in the fund that might be hostile to the impleaded claimants. Although the strict requirements of an equitable interpleader would not be fully applicable to a bill in the nature of an interpleader, both actions are still equitable in nature and require that the plaintiff make full disclosure of all relevant facts. For a discussion of the origin and development of interpleader actions, see Klaber v. Maryland Casualty Co., 69 F.2d 934, 106 A.L.R. 617 (8 Cir. 1934); Standard Surety and Casualty Company of New York v. Baker, 105 F.2d 578 (8 Cir. 1939).
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_r_stid | 10 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Alvin Bernard FORD, Petitioner, v. Charles G. STRICKLAND, Jr., Warden, Florida State Prison; Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida; Jim Smith, Attorney General, State of Florida, Respondents.
No. 81-6200.
United States Court of Appeals, Eleventh Circuit.
April 15, 1982.
Rehearing Granted April 28, 1982.
Richard H. Burr, III, Nashville, Tenn., Marvin E. Frankel, New York City, for petitioner.
Joy B. Shearer, Asst. Atty. Gen., W. Palm Beach, Fla., for respondents.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN, District Judge.
Honorable Virgil Pittman, U. S. District Judge for the Southern District of Alabama, sitting by designation.
Judge Hatchett is recused and did not participate in this decision.
RONEY, Circuit Judge:
Alvin Bernard Ford was charged with shooting a wounded policeman in the back of the head at close range while fleeing from an armed robbery. Convicted of murder, Ford was sentenced to death in Florida. He appeals the denial of a petition for writ of habeas corpus alleging essentially seven contentions: (1) improper admission of an oral confession; (2) failure of the Florida Supreme Court to require resentencing when it found three of the statutory aggravating circumstances unsupported by the evidence; (3) improper state trial court instructions on mitigating circumstances; (4) failure of the Florida death law to require a finding that aggravating circumstances must outweigh mitigating circumstances beyond a reasonable doubt; (5) failure of the Florida Supreme Court to apply a consistent standard of reviewing the aggravating and mitigating circumstances in the case; (6) ineffective assistance of counsel at sentencing; and (7) review by the Florida Supreme Court of nonrecord materials in death cases, the so-called Brown issue. After examining each of these contentions carefully, we affirm the denial of the writ of habeas corpus.
Briefly, the facts giving rise to petitioner’s conviction and sentence are as follows. On the morning of July 21, 1974, Ford and three accomplices entered a Red Lobster Restaurant in Fort Lauderdale, Florida, to commit an armed robbery. During the course of the robbery, two people escaped from the restaurant. Fearing police would soon arrive, petitioner’s accomplices fled. Ford remained to complete the theft of approximately $7,000 from the restaurant’s vault.
Officer Dimitri Walter Ilyankoff arrived on the scene. Petitioner allegedly shot him twice in the abdomen and, apparently realizing his accomplices had abandoned him, ran to the parked police car. Because there were no keys in the car, Ford ran back to the struggling, wounded officer. Petitioner asked Officer Uyankoff for the keys and then allegedly shot him in the back of the head at close range. Ford took the keys and made a high speed escape.
Petitioner was convicted in Circuit Court, Broward County, Florida, of first degree murder. In accordance with the jury’s recommendation, the trial judge sentenced him to death. On direct appeal, both the conviction and sentence were affirmed. Ford v. State, 374 So.2d 496 (Fla.1979). The United States Supreme Court denied Ford’s petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).
Petitioner thereafter joined with 122 other death row inmates in filing an application for extraordinary relief and petition for writ of habeas corpus in the Florida Supreme Court. The petitioners challenged the court’s practice of receiving nonrecord information in connection with review of capital cases. The Florida Supreme Court dismissed the petition, Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), and the United States Supreme Court denied certiorari, Brown v. Wainwright, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).
Ford then filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure and applied for a stay of execution. Relief was denied. Ford v. State, 407 So.2d 907 (Fla. 1981).
Finally, petitioner filed a petition for writ of habeas corpus under 28 U.S.C.A. § 2254 in the United States District Court for the Southern District of Florida. The district court denied relief, and we granted a stay of execution so that the issues raised could be reviewed on appeal.
I.
Admission of Ford's Oral Confession
Ford was arrested in Gainesville, Florida on the day of the murder. He refused to talk with Gainesville police officers, indicating he first wanted to consult a lawyer. He was given an opportunity to talk to a public defender, but refused to accept that representation. He was Unable to reach his private attorney.
Fort Lauderdale police officers came to return Ford to Fort Lauderdale. The Miranda warnings were given and petitioner “wanted” to talk but would not give a written statement until he had contacted his lawyer. Petitioner’s only statement at the time was “I didn’t shoot that cop.” On a small plane from Gainesville to Fort Lauderdale, another officer gave Ford Miranda warnings. Ford said he was willing to talk but would give no written statement until he had talked with his lawyer. After informing a Fort Lauderdale officer of his earlier unsuccessful effort to contact his attorney and his refusal of representation by the public defender, petitioner admitted participating in the Red Lobster robbery. Although denying participation in the killing, he admitted being left behind at the Red Lobster by his accomplices, seeing a police officer lying on the ground as he left the restaurant, and escaping in the police car which he abandoned for a green Volkswagen.
Ford claims admission of the above statement in his trial violated the Fifth, Sixth and Fourteenth Amendments and was contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, including United States v. Priest, 409 F.2d 491 (5th Cir. 1969), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). He argues that having invoked without waiving his right to counsel, his responses to subsequent police-initiated custodial interrogation without an attorney should not have been admitted into evidence.
Petitioner moved to suppress his confession, but failed to appeal the trial court’s denial of his motion on direct appeal to the Florida Supreme Court. Based on Wain wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the district court held Ford’s failure to raise the issue on direct state appeal forecloses its consideration in this habeas corpus proceeding.
The Florida procedural law is clear. A criminal defendant’s failure to raise an issue which could be asserted on direct appeal precludes consideration of the issue on a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Hargrave v. State, 396 So.2d 1127 (Fla. 1981). Accordingly, the state courts refused to consider this contention concerning the confession.
In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court held a state prisoner who knowingly and deliberately bypasses state procedures intentionally relinquishes known rights and can be denied habeas corpus relief on that basis. Recognizing Fay left open the possibility of “sandbagging” by defense lawyers, the Supreme Court narrowed its sweeping rule in Wainwright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977). The Court held that absent a showing of both cause for noncompliance and actual prejudice, habeas corpus relief is barred where a state prisoner has failed to comply with a state contemporaneous objection rule. 433 U.S. at 87, 97 S.Ct. at 2506.
While Sykes arose in the context of a procedural default at the trial level, we have applied its rationale in cases involving a procedural default during the course of a direct appeal from a state court conviction. See Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981); Evans v. Maggio, 557 F.2d 430, 433-34 (5th Cir. 1977). Other circuits have applied Sykes in the same fashion. See Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980); Cole v. Stevenson, 620 F.2d 1055 (4th Cir. 1980); Gibson v. Spalding, 665 F.2d 863, 866 (9th Cir. 1981). Applying Sykes in this setting accrues the dual advantage of discouraging defense attorneys from omitting arguments in preparing appeals with the intent of saving issues for federal habeas corpus consideration and encouraging state appellate courts to strictly enforce procedural rules, thereby reducing the possibility the federal court will decide the constitutional issue without the benefit of the state’s views. Gibson v. Spalding, 665 F.2d at 866; Wainwright v. Sykes, 433 U.S. at 90, 97 S.Ct. at 2508. Additionally, application of Sykes to the forfeiture of specific claims on appeal promotes the goals of comity and accuracy identified by the Sykes Court. Forman v. Smith, 633 F.2d at 639.
Thus, in this Circuit a state prisoner can forego the opportunity to raise constitutional issues in habeas corpus proceedings by deliberately bypassing state appellate procedural rules or by merely failing to follow them without showing both cause for the default and prejudice resulting from it. Because this record does not reveal Ford’s procedural default was the result of an intentional bypass within the meaning of Fay, we turn to the cause and prejudice exception of Sykes.
Cause and prejudice are sometimes interrelated. Huffman v. Wainwright, 651 F.2d at 351. While the Supreme Court has not explicitly defined cause and prejudice, our precedents have defined “cause” sufficient to excuse a procedural default in light of the determination to avoid “a miscarriage of justice.” Id. Prejudice means “actual prejudice” which in this case must result from the failure to appeal the trial court’s admission of petitioner’s statement. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir. 1978).
A careful review of the record reveals the Sykes exception does not apply in this case. Ford’s argument that the procedural default is excused because of the position of Florida courts at the time on the issue must fail. The claim was perceived and asserted in the trial court, and therefore could have been asserted on appeal. Engle v. Isaac, - U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting Sykes.
- U.S. at -, 102 S.Ct. at 1572 (footnotes omitted).
Even addressed in terms of manifest injustice, see Huffman v. Wainwright, 651 F.2d 347 (5th Cir. 1981), under the circumstances of this case, imposition of the Sykes forfeiture rule does not constitute a miscarriage of justice. Petitioner does not contest the accuracy of the statement made to the Fort Lauderdale police. The statement admitted only presence and participation in the robbery; it denied participation in the shooting. The Florida Supreme Court, in discussing effectiveness of counsel, concluded and we agree that “[tjhere was abundant evidence apart from the confession, some by eyewitnesses, to place him at the scene as a participant.” Ford v. State, 407 So.2d at 909.
II.
Failure to Require Resentencing When Evidence Insufficient on Some Aggravating Circumstances
After receiving instructions on the eight aggravating circumstances under Fla.Stat. § 921.141, Ford’s jury recommended the death penalty. Finding evidentiary support for all eight aggravating circumstances, the judge sentenced petitioner to death. On appeal, the Florida Supreme Court ruled three of the eight did not apply because two lacked evidentiary support and one was based on the same aspect of the crime as another circumstance. Ford v. State, 374 So.2d 496, 501-03 (Fla.1979). The court upheld the five other aggravating circumstances, specifically finding the killing “especially heinous, atrocious, or cruel.” Id. at 503. In the absence of any mitigating circumstances, death was presumed the appropriate penalty and the sentence was affirmed. Id.
Petitioner argues that Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981), and Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980), reh. denied and modified, 648 F.2d 446 (5th Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 90, 71 L.Ed.2d 82 (1981), require resentencing under the above circumstances.
In Stephens the Georgia Supreme Court had held unconstitutional one of the statutory aggravating circumstances presented to the jury. We held that the death sentence must be set aside because it was impossible to tell from the record the extent to which the Georgia jury had relied on an unconstitutional statutory aggravating factor in imposing the death penalty. Stephens v. Zant, 631 F.2d at 406. In Henry, we held the trial court committed constitutional error in admitting into evidence and permitting the jury to consider evidence of nonstatutory aggravating circumstances. Henry v. Wainwright, 661 F.2d at 60. These two cases are inapposite to the case at bar.
The instant case involves consideration of neither unconstitutional nor nonstatutory aggravating factors. That evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not compel the conclusion that the death sentence was unconstitutionally infected by consideration of extraneous evidence. The sentencing jury and judge considered only evidence of factors which could properly be considered by them. Where, as here, there were no statutory mitigating circumstances and the sentencer has considered only constitutional statutory aggravating circumstances, we perceive no reversible error where properly found statutory aggravating circumstances sufficiently support the sentence. The Florida Supreme Court’s review has achieved the goals of rationality, consistency and fairness required under Proffitt v. Florida, 428 U.S. 242, 258-60, 96 S.Ct. 2960, 2969-70, 49 L.Ed.2d 913 (1976), and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
Neither did the trial court commit constitutional error in instructing the jury as to all aggravating and mitigating circumstances permitted by the statute. To assure the jury understands the structure of the law as required by Proffitt, it seems appropriate that they be charged fully on the Florida statute, provided proper instructions on the burden of proof and the standard of evidence required to prove the factors are given.
III.
Instructions on Mitigating Circumstances
Instructing the jury on aggravating circumstances, the trial judge stated, “you shall consider only the following...,” and read the statutory language. With regard to mitigating circumstances, he said, “you shall consider the following...,” again reading the appropriate statutory language. Ford neither objected to the instruction at trial nor raised it on direct appeal.
Relying primarily on Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981), petitioner argues the above instructions improperly limited the jury’s consideration to statutory mitigating factors and precluded consideration of nonstatutory mitigating factors contrary to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Lockett held “the sentencer... [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604, 98 S.Ct. at 2964.
With reference to aggravating circumstances, the Mississippi trial court in Washington instructed the jury to “consider only the following elements.... ” As to mitigating circumstances, the judge stated, “consider the following elements.... ” Washington v. Watkins, 655 F.2d at 1367. The state court concluded:
If you unanimously find from the testimony that one or more of the preceding elements of mitigation exist[s], then you must consider whether it outweighs the aggravating circumstances you previously found and you must return one of the following verdicts....
Id. at 1368 (emphasis added).
Reasoning that in determining whether aggravating outweighed mitigating factors jurors might have believed it was their sworn duty to consider only the two statutory mitigating circumstances enumerated in the charge, the Fifth Circuit reversed Washington’s death sentence.
In evaluating the state court’s instructions, we must pay careful attention to the words actually spoken to the jury to determine the interpretation a reasonable juror might give the instruction in question. Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). The entire charge must be examined as a whole to discern whether the issues and law presented to the jury were adequate. Davis v. McAllister, 631 F.2d 1256, 1260 (5th Cir. 1980), cert. denied, 452 U.S. 907, 101 S.Ct. 3035, 69 L.Ed.2d 409. Where some deficiency exists in the language of the charge taken as a whole, it must be shown that it so infected the entire trial process that a due process violation occurred. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Washington v. Watkins, 655 F.2d at 1369.
Evaluating the jury charge in this case under the foregoing standard, we reject Ford’s contention. While the instructions in Washington and the instant case involve similar use of the term “only,” there are significant differences. Petitioner’s jury was read the entire list of statutory mitigating circumstances and was not confined to two “preceding elements of mitigation,” an important factor to the court’s decision in Washington. 655 F.2d at 1370. More importantly, the sentencing judge’s order which stated “[t]here are no mitigating circumstances existing — either statutory or otherwise — which outweigh any aggravating circumstances” reflects his consideration of the nonstatutory mitigating evidence offered by Ford. The Florida statute does not restrict a jury’s consideration of mitigating circumstances to those listed in the statute. It is reasonable to conclude the state trial judge’s perception that nonstatutory mitigating factors could be considered was conveyed to the advisory jury. The language about which petitioner complains did not so “infect” the entire sentencing process as to present a due process violation.
IV.
Standard by Which Aggravating Circumstances Must Outweigh Mitigating Factors
Florida Statute § 921.141(3)(b) requires the sentencing court, in imposing the death penalty, to state in writing its finding “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” Petitioner contends that because the statute, case law and jury instructions do not require the state to prove that aggravating factors outweigh mitigating factors “beyond a reasonable doubt,” Florida’s death penalty statute, on its face and as applied in this case, denies convicted capital defendants due process. Ford argues that the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances, and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment. Since the element is part of the crime, he asserts that the beyond a reasonable doubt standard is required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and its progeny. We reject this argument for several reasons.
First, that the aggravating must outweigh mitigating factors for imposition of the death penalty under the Florida statute is not an element of the crime of capital murder in Florida. Under the Florida bifurcated death penalty statute, the sentencing proceeding is entirely separate from trial on the capital offense. Indeed, in certain circumstances the state judge can summon different jurors for the latter phase. Fla.Stat. § 921.141(1). Guilt of the capital offense having already been decided, the sentencing jury’s sole function is to render an advisory sentence aiding the state judge in determining whether the defendant should be sentenced to death or life imprisonment. Id. Thus, that the Due Process Clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072 (emphasis added), is irrelevant to deciding under the Florida statute whether there are insufficient mitigating circumstances to outweigh aggravating circumstances. The aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer’s discretion in a structured way after guilt has been fixed. As the Supreme Court explained:
While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.
Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).
Second, the United States Supreme Court has declared constitutional on its face Florida’s capital sentencing procedure, including its weighing of aggravating and mitigating circumstances. The Supreme Court stated: Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. The statute, facially constitutional, was strictly applied according to its terms.
The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.
Third, Ford’s argument under In re Winship seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. at 258, 96 S.Ct. at 2969. Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 257 S.E.2d at 617, and State v. Woods, 648 P.2d 71 (1981) [Utah 1981],
Ford’s alternate argument, raised for the first time in his reply brief, is that the Florida capital sentencing proceeding involves new findings of fact significantly affecting punishment to which the full panoply of due process rights should be extended, including the requirement that the state prove beyond a reasonable doubt that mitigating factors outweigh aggravating factors. Again petitioner confuses proof of facts with the weighing process undertaken by the sentencing jury and judge. Because the latter process is not a fact susceptible of proof under any standard, we reject this contention.
V.
Florida Supreme Court’s Standard of Review
Ford claims the Florida Supreme Court, in reviewing the evidence of aggravating and mitigating circumstances, violated the Eighth Amendment by failing to apply in his case the same standard of review applied in other capital cases. Specifically, he contends that under Florida case law, the court should have set aside two aggravating circumstances, collapsed two aggravating circumstances into one, and found the existence of one statutory mitigating circumstance and nonstatutory mitigating circumstances.
While petitioner characterizes this contention as the Florida Supreme Court’s failure to apply a consistent standard of review, the district court correctly discerned that he is simply “quarreling” with the state court. Where in a capital punishment case the state courts have acted through a properly drawn statute with appropriate standards to guide discretion, Proffitt v. Florida, 428 U.S. at 258-59, 96 S.Ct. at 2969, federal courts will not undertake a case-by-case comparison of the facts in a given case with the decisions of the state supreme court. Spinkellink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir. 1978). This rule stands even though were we to retry the aggravating and mitigating circumstances in these cases, “we may at times reach results different from those reached in the Florida state courts.” Id. at 605.
The Supreme Court of Florida is the ultimate authority on Florida law and we do not sit to question its interpretation of that State’s statutes. See Stephens v. Zant, 631 F.2d at 405-06. Ford has not cited and we have not found any habeas corpus decision in which this Court has reversed a death sentence due to the state court’s incorrect decision as to the existence or absence of aggravating and mitigating circumstances.
Moreover, examination of. the relevant Florida Supreme Court decisions reveals that its review of petitioner’s death sentence was not arbitrary, capricious or in disaccord with the constitutional principles relating to sentencing in capital cases. Under 28 U.S.C.A. § 2254(d), we presume correct facts properly found by the state courts. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, - U.S. -, 102 S.Ct. 1303, 71. L.Ed.2d 480 (1982). There is nothing in this record to show the Florida Supreme Court failed to apply the standard of review mandated by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny.
VI.
Assistance of Counsel at Sentencing
Petitioner contends he received ineffective assistance of counsel at sentencing. Specifically he claims that although counsel called character witnesses and a psychiatrist to testify in mitigation, he “failed to focus the trial judge’s and jury’s attention on the critical factors relevant to the sentence determination.” Careful review of the record and Ford’s specific arguments reveals this contention is nothing more than an attack on the reasoned tactics and strategy of experienced trial counsel.
On reviewing ineffective assistance of counsel claims, we do not sit to second guess considered professional judgments with the benefit of 20/20 hindsight. Washington v. Watkins, 655 F.2d at 1355; Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1398, 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978); United States v. Beasley, 479 F.2d 1124, 1129 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). That an attorney’s strategy may appear wrong in retrospect does not automatically mandate constitutionally ineffective representation. Baty v. Balkcom, 661 F.2d 391, 395 n.8 (5th Cir. 1981); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir. 1981).
That counsel for a criminal defendant has not pursued every conceivable line of inquiry in a case does not constitute ineffective assistance of counsel. Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). This is not a case in which counsel allegedly failed to adequately prepare and investigate. See Washington v. Strickland, 673 F.2d 879 (5th Cir. 1982). Ford’s counsel was reasonably likely to render and did render reasonably effective assistance. Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974). Because the record reveals counsel’s representation was constitutionally adequate and there resulted no prejudice to petitioner by any action or inaction of counsel, see Washington v. Watkins, 655 F.2d at 1362, Ford has not carried his burden of proving ineffective assistance of counsel. United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981).
VII.
The Brown Issue: Nonrecord Material Before the Florida Supreme Court
Petitioner alleges the Florida Supreme Court had a practice of receiving nonrecord materials concerning death row inmates during the pendency of the appeal of his death sentence. Ford specifically claims that in his case the Florida Supreme Court reviewed ex parte psychiatric evaluations or contact notes, psychological screening reports, post-sentence investigation reports and state prison classification and admission summaries. This practice, he contends, precluded adversarial testing of the information in violation of his rights to due process of law, effective assistance of counsel, confrontation and reliability and proportionality of capital sentencing. Additionally, he argues the court’s receipt of results of psychiatric examinations which were conducted without first informing him of his Fifth Amendment rights violated his privilege against self-incrimination and his right to confer with his attorney before determining whether to submit to them.
This issue first surfaced in a petition for writ of habeas corpus directed to the Florida Supreme Court brought on behalf of 122 Florida death row inmates, of which Ford was one. The Court denied the petition with a full opinion. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 71 L.Ed.2d 407 (1981).
We reject the contention both generally and specifically as made for Ford. The function of the Supreme Court of Florida in these cases is to review sentences for procedural regularity and proportionality. The court does not “impose” sentence, and for that reason there cannot exist a due process violation under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1980). As the Florida Supreme Court aptly stated:
The record of each proceeding, and precedent, necessarily frame our determinations in sentence review. Our opinions, of course, then expound our analysis. Factors or information outside the record play no part in our sentence review role. Indeed, our role is neither more nor less, but precisely the same as that employed by the United States Supreme Court in its review of capital punishment cases. Illustrative of the Court’s exercise of the review function is Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
******
It is evident, once our dual roles in the capital punishment scheme are fully appreciated, that non-record information we may have seen, even though never presented to or considered by the judge, the jury, or counsel, plays no role in capital sentence “review.” That fact is obviously appreciated by the United States Supreme Court, for it very carefully differentiated the sentence “review” process of appellate courts from the sentence “imposition” function of trial judges in Proffitt and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
Brown v. Wainwright, 392 So.2
Question: What is the state of the first listed state or local government agency that is a respondent?
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_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.
Delbert PIXLEY, Appellant, v. UNITED STATES of America, Appellee.
No. 5061.
United States Court of Appeals, Tenth Circuit.
March 30, 1955.
Robert Fullerton, Denver, Colo., (L. W. Wiley, Muskogee, Okl., was with him on the brief), for appellant,
Harry G. Fender, Asst. U. S. Atty., Muskogee, Okl. (Frank D. McSherry, U. S. Atty., Muskogee, Okl., and Paul M. Brewer, Asst. U. S. Atty., Wewoka, Okl., were with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
PER CURIAM.
Tried to the court without a jury, appellant was found guilty and sentenced to imprisonment for the offense of transporting a stolen automobile in interstate commerce, knowing it to have been stolen.
The contention urged for reversal of the judgment is that under the rule of law enunciated in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L. Ed. 819; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48, and other kindred cases, the court erred in admitting in evidence certain oral statements of appellant in the nature of a confession made while being detained and before being taken before a federal judge or committing magistrate. Considered in their totality, these cases do not render inadmissible in evidence every confession made by an accused person while being detained and before being taken before a committing magistrate. They bring into focus and strike only at confessions made while the accused is being unreasonably or inexcusably detained before being taken before a committing magistrate for the purpose of extracting evidence from him, or confessions obtained with attending circumstances which constitute physical or psychological coercion. Ruhl v. United States, 10 Cir., 148 F.2d 173; Blood v. Hunter, 10 Cir., 150 F.2d 640; Tarkington v. United States, 4 Cir., 194 F.2d 63.
A special agent for the Bureau of Investigation and the chief of police of the town of Van Burén, Arkansas, took appellant into custody in Van Burén sometime Saturday morning. The special agent had been advised by long distance telephone that a warrant had been issued at Muskogee, Oklahoma, for the arrest of appellant upon the charge of transporting the automobile from Arkansas into Oklahoma, but the special agent did not have the warrant in his possession At the time of the arrest appellant was suffering from the effects of a gun shot wound suffered in the course of a family altercation. The special agent and the chief of police took appellant to the office of a physician for the purpose of having his wounds examined and treated if necessary. From the office of the physician, the officers took him to the office of the chief of police. After arriving there, the special agent called on long distance telephone the United States Commissioner at Forth Smith, Arkansas, to arrange for a hearing for appellant. The Commissioner advised the special agent that he was leaving town; that he would be back Monday; and that he would then hold the hearing. Immediately thereafter, the special agent advised appellant that he did not have to make a statement; that any statement he might make could be used against him; and that he was entitled to an attorney. After so advising appellant, the officers began to interrogate him. The interrogation lasted about an hour. At about noon, appellant made oral statements which constituted a confession of the offense. While testifying, appellant denied that he transported the automobile but he did not deny making the statements to the officers; and it is not contended that the statements were obtained through coercive means. Cases involving the question whether a confession is inadmissible under the so-called McNabb doctrine do not lend themselves to any fixed and unyielding pattern. Each case depends upon its own peculiar facts and circumstances. Appellant was-taken into custody Saturday morning. An effort was made almost immediately to take him before the United States Commissioner in Fort Smith. That was impossible, due to the impending absence of the Commissioner from the city over the weekend. No effort was made to take appellant before the United States District Judge in Fort Smith during the remainder of Saturday. But there was no showing that the judge was at home or that his other judicial engagements made it feasible to hear the matter that day. Similarly, no effort was made to take appellant before some other committing magistrate during Saturday, but there was no showing that any magistrate with the requisite legal authority was available in Van Burén. The Commissioner with whom the special agent talked on the telephone returned to Fort Smith and appellant was taken before him Monday morning. There was no unreasonable or inexcusable delay in taking appellant before a committing magistrate, and no coercive methods were employed to obtain from him the confession in question. In these circumstances, the evidence relating to the statements made in the nature of a confession was admissible. Garner v. United States, 84 U.S. App.D.C. 361, 174 F.2d 499, certiorari denied, 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748; United States v. Walker, 2 Cir., 176 F.2d 564, certiorari denied, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547; Symons v. United States, 9 Cir., 70 S.Ct. 1006, 94 L.Ed. 1388; Haines v. United States, 9 Cir., 188 F.2d 546, certiorari denied, 342 U.S. 888, 72 S.Ct. 172, 96 L.Ed. 666; United States v. Hymowitz, 2 Cir., 196 F.2d 819; Pierce v. United States, 91 U.S.App.D.C. 19, 197 F.2d 189, certiorari denied, 344 U.S. 846, 73 S.Ct. 62, 97 L.Ed. 658; Allen v. United States, 91 U.S.App.D.C. 197, 202 F.2d 329, certiorari denied, 344 U.S. 869, 73 S.Ct. 112, 97 L.Ed. 674.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_state | 06 | 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".
The ENGINEERS CLUB OF SAN FRANCISCO, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
No. 85-1964.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 13, 1986.
Decided June 6, 1986.
Lawrence V. Brookes, Valentin Brookes, Brookes & Brookes, San Francisco, Cal., for plaintiff-appellee.
Robert Pomerance, U.S. Dept, of Justice, Washington, D.C., for defendant-appellant.
Before BROWNING, TANG, and BEEZER, Circuit Judges.
TANG, Circuit Judge:
Plaintiff/Appellee, the Engineers Club of San Francisco, filed suit in federal district court seeking reclassification as a business league under IRC § 501(c)(6), 26 U.S.C. § 501(c)(6). A business league classification would entitle Engineers Club to income tax refunds on its unrelated business income for the years 1978-81. The district court held that Engineers Club met the requirements of § 501(c)(6) and qualified as a business league, 609 F.Supp. 519. We reverse.
FACTS
Engineers Club is a nonprofit corporation formed in 1912. According to its amended articles of incorporation, Engineers Club’s purpose is:
to provide an organization in which Engineers of all branches of the Profession may come together, and through which they may cooperate and foster the development of the Engineer Profession as a whole in California and incidentally and in aid of such main purpose to acquire by purchase, lease or otherwise and conduct suitable quarters for a meeting place for carrying out such purpose.
Membership is open to and composed primarily of professional engineers.
Engineers Club leases space on the top two floors in an office building in downtown San Francisco. The facility consists of a large kitchen, meeting and dining rooms, a bar, a combination game-grill room, and a library-reading room. Administrative offices and storage rooms are located on other floors. The Club is open daily and serves lunch to its members and their guests.
The Club serves its members, and the professional societies to which they belong, by providing meetings and meeting space, logistical support, a location for operations, mailing service, telephone service, storage of records, and other facilities and services. Members of the Club may reserve Club facilities for their own purposes. Club facilities are mostly reserved for meetings and seminars conducted by the professional societies to which members belong. The professional societies are not charged a fee for the use of the facilities but only for the food, liquor or tobacco furnished. The entire membership of a professional society, including non-Club members, is invited to attend such events.
During the years in question, the Club was used by over twenty engineering societies and other organizations associated with the engineering profession. The meetings of the professional organizations are conducted primarily for the purpose of providing professional education and training to their members, and to disseminate information for the benefit of the profession as a whole. Toward this end many of the meetings are held outside normal business hours, or are specially scheduled when the members of the professional societies are in the San Francisco area. A significant number of meetings occur during the lunch hour or at dinner time and include the service of meals and beverages.
Since 1935, the Internal Revenue Service has classified Engineers Club as a “social club,” exempt under IRC § 501(c)(7), 26 U.S.C. § 501(c)(7), from some income tax. In November 1981, Engineers Club filed a written request with the IRS seeking reclassification as a business league retroactively to include fiscal years 1978-80. The IRS issued a ruling denying the exempt status in July 1982. The denial was timely protested and hearings took place in January 1983. The IRS issued a letter affirming its denial of the requested status in March 1983. Timely claims for refunds were filed with and denied by the IRS. Engineers Club filed suit in district court for reclassification and income tax refunds.
DISCUSSION
COLLATERAL ESTOPPEL
At trial, Engineers Club first raised the bar of collateral estoppel. The district court rejected this claim and the Club renews it on appeal.
Engineers Club asserts that the government is collaterally estopped from claiming that the Club is a social club by virtue of United States v. Engineers Club of San Francisco, 325 F.2d 204 (9th Cir.1963). We there affirmed the ruling of the district court that Engineers Club was not a “social club” within the meaning of § 4241 of the 1954 Code with respect to excise taxes on its dues and initiation fees.
The government argues that the issue on appeal is not factual, but legal. The government submits that the appeal turns on the correct application of the statute and regulations, as illuminated by the case law, to the facts found by the district court.
Essentially, Engineers Club argues that since it is not a social club, it must then be a business league. This argument is without merit.
The issue before us is whether Engineers Club qualifies under § 501(c)(6) as a business league, thus entitling it to a tax exemption on its unrelated business income. Our 1963 decision did not address or interpret Internal Revenue Code § 501(c)(6). Section 501(c)(6), unlike Section 4241 (now repealed), imposes specific restrictions on the manner in which a qualifying business league promotes the business interests of its members. Since the 1963 decision addressed a distinctly different issue under another section of the Tax Code, that decision has no collateral estoppel implications for the instant case.
SECTION 501(c)(6)
Organizations designated business leagues under IRC § 501(c)(6) are exempt from the payment of tax on such organization’s unrelated business income, including investment income. The government argues that the district court incorrectly characterized Engineers Club as a business league.
STANDARD OF REVIEW
Engineers Club argues on appeal that the district court’s conclusion that Engineers Club qualifies as a business league is a finding of fact that may not be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a).
We believe the inquiry presented most resembles a mixed question of fact and law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (“if ... a question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles ... the question should be classified as one of law and reviewed de novo.”). Accord MIB, Inc, v. Commissioner, 734 F.2d 71, 76 (1st Cir.1984) (reviewing “business league” classification de novo).
ANALYSIS
IRC § 501(c)(6) provides an unrelated business income exemption for:
Business leagues, chambers of commerce, real estate boards, boards of trade, or professional football leagues ... not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.
According to the long-accepted regulatory definition, a “business league” is:
[A]n association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit. It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons. An organization whose purpose is to engage in a regular business of a kind ordinarily carried on for profit, even though the business is conducted on a cooperative basis or produces only sufficient income to be self-sustaining, is not a business league.
Treas.Reg. § 1.501(c)(6)-l (1983). Having been left undisturbed despite numerous reenactments of identically-worded predecessors to I.R.C. § 501(c)(6), this definition is deemed to have been given the imprimatur of Congress and is thus entitled to the effect of law. North Carolina Association of Insurance Agents, Inc. v. United States, 739 F.2d 949, 954 (4th Cir.1984); Underwriters’ Laboratories v. Commissioner, 135 F.2d 371 (7th Cir.1943).
Thus, for an organization to achieve business league status, the requirements as stated in Treas.Reg. § 1.501(c)(6) must be met. Section 1.501(c)(6) requires a business league to be an association (1) of persons having a common business interest; (2) whose purpose is to promote the common business interest; (3) not organized for profit; (4) that does not engage in a business ordinarily conducted for profit; (5) whose activities are directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons; (6) of the same general class as a chamber of commerce or a board of trade. The government concedes that Engineers Club is: (1) an association of persons having a common business interest; (2) one purpose of which is to promote that common business interest; and (3) the club is not organized for profit. Thus, Engineers Club meets requirements (IMS).
The district court based its determination that Engineers Club qualifies as a business league by applying a functional analysis to the “incidentalness” exception of requirement (4), the ‘Business Ordinarily Conducted for Profit’ prohibition. Although a business league should not be engaged in a regular business of a kind ordinarily conducted for a profit, a business activity will not cost an organization its exemption as a business league if the activity is merely incidental to the main purpose of the organization. Retailers Credit Association v. Commissioner, 90 F.2d 47, 51 (9th Cir.1937).
We assume, without deciding, that the district court was not clearly erroneous in determining that the Engineers Club food and beverage service was incidental to the main purpose of the organization. We find, however, that the district court’s “functional” test did not adequately address requirements (5) and (6). Our examination of these latter requirements leads us to conclude that Engineers Club fails to qualify for business league classification.
Particular Services for Individual Persons
Section 1.501(c)(6) requires that a business league be “directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons.” The district court failed to address this requirement.
In fact the club did and does provide particular services, chiefly food and beverage service, to its individual members. Although we recognize that the food and beverage service also confers a general benefit on the engineering profession, the food and beverage service, and particularly the luncheon trade, is a service performed for individual persons and organizations rather than the engineering profession as a whole.
Organizations frequently fail to qualify for business league status even though their activities confer collective benefits. For example, in MIB, Inc. v. Commissioner, 734 F.2d 71 (1st Cir.1984), an insurance industry established non-profit corporation operated a computer storage and retrieval bank from which each member company could obtain, for a fee, data relevant to insurance sales. This service, the court said, may “confer[ ] a general benefit upon all members and act[] in the collective interest,” id. at 78, chiefly as a deterrent to applicant fraud. Nevertheless, the court ruled that the organization failed to qualify as a business league. The collective benefit, although real, did not alter the fact that the rendered services were in form and substance “particular services for individual persons.” Id. at 78. See also, Contracting Plumbers Cooperative Restoration Corp. v. United States, 488 F.2d 684, 688 (2d Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974) (repair of city streets, although of benefit to entire trade and to public, nevertheless the “performance of particular service for individual members”); Steamship Trade Association of Baltimore, Inc. v. Commissioner, 757 F.2d 1494, 1498 (4th Cir.1985) (incidental synergy not sufficient to overcome “performance of particular service for individual members" prohibition).
Same General Class as a Chamber of Commerce or a Board of Trade
Section 1.501(c)(6) also states that a business league “is an organization as the same general class as a chamber of commerce or a board of trade.” Again, the district court failed to discuss this requirement.
In MIB, Inc. v. Commissioner, 734 F.2d at 78 n. 5, the court noted:
In National Muffler Dealers Ass’n v. United States, 440 U.S. [472,] 480-82, 99 S.Ct. [1304] at 1308-09 [59 L.Ed.2d 519] [1979], the Supreme Court traced the genesis, and confirmed the significance, of the sentence in the regulation that a business league “is an organization of the same general class as a chamber of commerce or board of trade.” (Emphasis supplied.) Reference to these organizations is meant, under the principle of noscitur a sociis, to limit business league classification to organizations which share the same general characteristics. 440 U.S. at 481, 99 S.Ct. at 1309.
The fact that an organization conducts professional programming of its own has long been an important consideration. Rev.Rul. 67-295; Rev.Rul. 70-244; Rev. Rui. 70-641; Rev.Rul. 71-504; Rev.Rul. 70-505. Engineers Club does not itself conduct professional programming; rather, it hosts the professional societies and groups to which its members belong. The absence of Club conducted professional programming suggests that any resemblance to a chamber of commerce or a board of trade is, at best, weak.
CONCLUSION
The district court’s functional test ignores important language of treasury regulation 1.501(c)(6). In order to qualify for a business league classification, each and every requirement of 1.105(c)(6) must be met. On the facts before us, Engineers Club fails to qualify for business league status. The judgment of the district court is therefore
REVERSED.
. Section 501(c)(7) confers tax exempt status but requires tax to be paid on unrelated business income.
. The Club’s performance of particular services for its members further distinguishes it from a board of trade or chamber of commerce. “Prominent among the characteristics of boards of trade and chambers of commerce is the emphasis on improving trade and commerce by activities which serve business people and members of the community in common, not individually.” MIB, Inc., 734 F.2d at 78, n. 5; see also Nat'l. Muffler Dealers Ass’n, 440 U.S. at 478, 99 S.Ct. at 1307.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
sc_caseorigin | 039 | 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.
RENO, ATTORNEY GENERAL, et al. v. AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE et al.
No. 97-1252.
Argued November 4,1998
Decided February 24, 1999
Malcolm L. Stewart argued the cause for petitioners. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, and Douglas N. Letter.
David D. Cole argued the cause for respondents. With him on the brief were Steven R. Shapiro, Lucas Guttentag, Marc Van Der Rout, and Paul L. Hoffman
Briefs of amici mriae urging reversal were filed for the Criminal Justice Legal Foundation by Kent S. Sekeidegger; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. the American
Briefs of amici mriae urging affirmance were filed for the American Bar Association by Philip S. Anderson, Jeffrey L. Bleich, and Carol Wol-chok; for the American Immigration Law Foundation et al. by Ira J. Kurz-ban and Nadine K Wettstein; for the Brennan Center for Justice at New York University School of Law by Burt Neubome; and for the National Immigration Law Center by Linton Joaquin and Gerald L. Newman.
Justice Scalia
delivered the opinion of the Court.
Respondents sued petitioners for allegedly targeting them for deportation because of their affiliation with a politically unpopular group. While their suit was pending, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, which contains a provision restricting judicial review of the Attorney General’s "decision or action” to "commence proceedings, adjudicate eases, or execute removal orders against any alien under this Act.” 8 U. S. C. § 1252(g) (1994 ed., Supp. III). The issue before us is whether, as petitioners contend, this provision deprives the federal courts of jurisdiction over respondents’ suit.
I
The Immigration and Naturalization Service (INS), a division of the Department of Justice, instituted deportation proceedings in 1987 against Bashar Amer, Aiad Barakat, Julie Mungai, Amjad Obeid, Ayman Obeid, Naim Sharif, Khader Hamide, and Michel Shehadeh, all of whom belong to the Popular Front for the Liberation of Palestine (PFLP), a group that the Government characterizes as an international terrorist and communist organization. The INS charged all eight under the MeCarran-Walter Act, which, though now repealed, provided at the time for the deportation of aliens who “advocate... world communism.” See 8 U. S. C. §§ 1251(a)(6)(D), (G)(v), and (H) (1982 ed.). In addition, the INS charged the first six, who were only temporary residents, with routine status violations such as overstaying a visa and failure to maintain student status. See 8 U. S. C. §§ 1251(a)(2) and (a)(9) (1988 ed.).
Almost immediately, the aliens filed suit in District Court, challenging the constitutionality of the anticommunism provisions of the MeCarran-Walter Act and seeking declaratory and injunctive relief against the Attorney General, the INS, and various immigration officials in their personal and official capacities. The INS responded by dropping the advocacy-of-communism charges, but it retained the technical violation charges against the six temporary residents and charged Hamide and Shehadeh, who were permanent residents, under a different section of the McCarran-Walter Act, which authorized the deportation of aliens who were members of an organization advocating “the duty, necessity, or propriety of the unlawful assaulting or killing of any [government] officer or officers” and “the unlawful damage, injury, or destruction of property.” See 8 U. S. C. §§ 1251(a)(6)(F)(ii)-(iii) (1982 ed.). INS regional counsel William Odenerantz said at a press conference that the charges had been changed for tactical reasons but the INS was still seeking respondents’ deportation because of their affiliation with the PFLP. See American-Arab Anti-Discrimination Committee v. Reno, 70 F. 3d 1045, 1053 (CA9 1995) (AADC I). Respondents amended their complaint to include an allegation that the INS was selectively enforcing immigration laws against them in violation of their First and Fifth Amendment rights.
Since this suit seeking to prevent the initiation of deportation proceedings was filed — in 1987, during the administration of Attorney General Edwin Meese — it has made four trips through the District Court for the Central District of California and the United States Court of Appeals for the Ninth Circuit. The first two concerned jurisdictional issues not now before us. See Hamide v. United States District Court, No. 87-7249 (CA9, Feb. 24, 1988); American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F. 2d 501 (CA9 1991). Then, in 1994, the District Court preliminarily enjoined deportation proceedings against the six temporary residents, holding that they were likely to prove that the INS did not enforce routine status requirements against immigrants who were not members of disfavored terrorist groups and that the possibility of deportation, combined with the chill to their First Amendment rights while the proceedings were pending, constituted irreparable injury. With regard to Hamide and Shehadeh’s claims, however, the District Court granted summary judgment to the federal parties for reasons not pertinent here.
AADC I, supra, was the Ninth Circuit’s first merits determination in this case, upholding the injunction as to the six and reversing the District Court with regard to Hamide and Shehadeh. The opinion rejected the Attorney General’s argument that selective-enforcement claims are inappropriate in the immigration context, and her alternative argument that the special statutory-review provision of the Immigration and Nationality Act (INA), 8 U. S. C. § 1105a, precluded review of such a claim until a deportation order issued. See 70 F. Bd, at 1056-1057. The Ninth Circuit remanded the case to the District Court, whieh entered an injunction in favor of Hamide and Shehadeh and denied the Attorney General’s request that the existing injunction be dissolved in light of new evidence that all respondents participated in fundraising activities of the PFLP.
While the Attorney General’s appeal of this last decision was pending, Congress passed IIRIRA which, inter alia, repealed the old judicial-review scheme set forth in § 1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. § 1252. The Attorney General filed motions in both the District Court and Court of Appeals, arguing that § 1252(g) deprived them of jurisdiction over respondents’ selective-enforcement claim. The District Court denied the motion, and the Attorney General’s appeal from that denial was consolidated with the appeal already pending in the Ninth Circuit.
It is the judgment and opinion in that appeal which is before us here: 119 F. 3d 1367 (CA9 1997). It affirmed the existence of jurisdiction under § 1252, see id., at 1374, and reaching the merits of the injunctions, again affirmed the District Court, id., at 1374-1376. The Attorney General’s petition for rehearing en banc was denied over the dissent of three judges, 132 F. 3d 531 (CA9 1997). The Attorney General sought our review, and we granted certiorari, 524 U. S. 903 (1998).
II
Before enactment of IIRIRA, judicial review of most administrative action under the INA was governed by 8 U. S. C. § 1105a, a special statutory-review provision directing that "the sole and exclusive procedure for... the judicial review of all final orders of deportation” shall be that set forth in the Hobbs Act, 28 U. S. C. §2341 et seq., which gives exclusive jurisdiction to the courts of appeals, see §2342. Much of the Court of Appeals’ analysis in AADC I was devoted to the question whether this pre-IIRIRA provision applied to selective-enforcement claims. Since neither the Immigration Judge nor the Board of Immigration Appeals has authority to hear such claims (a point conceded by the Attorney General in AADC I, see 70 F. 3d, at 1055), a challenge to a final order of deportation based upon such a claim would arrive in the court of appeals without the factual development necessary for decision. The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the ease to the agency, see 28 U. S. C. § 2347(e), or transfer it to a district court, see § 2347(b)(3), for further factfinding. The Ninth Circuit, believing these options unavailable, concluded that an original district-court action was respondents’ only means of obtaining factual development and thus judicial review of their selective-enforcement claims. Relying on our decision in Cheng Fan Kwok v. INS, 392 U. S. 206 (1968), it held that the District Court could entertain the suit under either its general federal-question jurisdiction, see 28 U. S. C. § 1331, or the general jurisdictional provision of the INA, see 8 U. S. C. § 1329.
Whether we must delve further into the details of this issue depends upon whether, after the enactment of IIRIRA, § 1105a continues to apply to this ease. On the surface of things, at least, it does not. Although the general rule set forth in § 309(c)(1) of IIRIRA is that the revised procedures for removing aliens, including the judicial-review procedures of § 1252, do not apply to aliens who were already in either exclusion or deportation proceedings on IIRIRA’s effective date, see note following 8 U. S. C. § 1101 (1994 ed., Supp. Ill), § 306(c)(1) of IIRIRA directs that a single provision, § 1252(g), shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U. S. C. § 1252 (1994 ed., Supp. III). Section 1252(g) reads as follows:
"(g) Exclusive Jurisdiction
"Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.”
This provision seemingly governs here, depriving the federal courts of jurisdiction “[ejxcept as provided in this section.” But whether it is as straightforward as that depends upon the scope of the quoted text. Here, and in the courts below, both petitioners and respondents have treated § 1252(g) as covering all or nearly all deportation claims. The Attorney General has characterized it as “a channeling provision, requiring aliens to bring all deportation-related claims in the context of a petition for review of a final order of deportation filed in the court of appeals.” Supplemental Brief for Appellants in No. 96-55929 (GA9), p. 2. Respondents have described it as applying to “most of what INS does.” Corrected Supplemental Brief for Appellees in No. 96-55929 (CA9), p. 7. This broad understanding of § 1252(g), combined with IIRIRA’s effective-date provisions, creates an interpretive anomaly. If the jurisdiction-excluding provision of § 1252(g) eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) “[ejxeept as provided in this section” incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases “except as” § 1252 provides jurisdiction is simply to say that § 1252’s jurisdictional limitations apply to pending cases as well as future cases — which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase “[except as provided in this section” were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252 — if § 1252(g) stood alone, so to speak — judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order.
The Attorney General would have us avoid the horns of this dilemma by interpreting § 1252(g)’s phrase “[ejxeept as provided in this section” to mean “except as provided in § 1105a.” Because § 1105a authorizes review of only final orders, respondents must, she says, wait until their administrative proceedings come to a close and then seek review in a court of appeals. (For reasons mentioned above, the Attorney General of course rejects the Ninth Circuit’s position in AADCI that application of § 1105a would leave respondents without a judicial forum because evidence of selective prosecution cannot be introduced into the administrative record.) The obvious difficulty with the Attorney General’s interpretation is that it is impossible to understand how the qualifier in § 1252(g), “[ejxeept as provided in this section” (emphasis added), can possibly mean “except as provided in § 1105a.” And indeed the Attorney General makes no attempt to explain how this can be, except to observe that what she calls a “literal application” of the statute “would create an anomalous result.” Brief for Petitioners 30, n. 15.
Respondents note this deficiency, but offer an equally implausible means of avoiding the dilemma. Section 309(c)(3) allows the Attorney General to terminate pending deportation proceedings and reinitiate them under §1252. They argue that § 1252(g) applies only to those pending cases in which the Attorney General has made that election. That way, they claim, the phrase “[ejxeept as provided in this section” can, without producing an anomalous result, be allowed to refer (as it says) to all the rest of § 1252. But this approach collides head-on with §306(c)’s prescription that § 1252(g) shall apply “without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” See note following 8 U. S. C. § 1252 (1994 ed., Supp. Ill) (emphasis added). (Respondents argue in the alternative, of course, that if the Attorney General is right and § 1105a does apply, A ADC I is correct that their claims will be effectively unreviewable upon entry of a final order. For this reason, and because they say that habeas review, if still available after IIRIRA, will come too late to remedy this First Amendment injury, respondents contend that we must construe § 1252(g) not to bar constitutional claims.)
The Ninth Circuit, for its part, accepted the parties' broad reading of § 1252(g) and concluded, reasonably enough, that on that reading Congress could not have meant § 1252(g) to stand alone:
“Divorced from all other jurisdictional provisions of IIRIRA, subsection (g) would have a more sweeping impact on cases filed before the statute’s enactment than after that date. Without incorporating any exceptions, the provision appears to cut off federal jurisdiction over all deportation decisions. We do not think that Congress intended such an absurd result.” 119 F. 3d, at 1372.
It recognized, however, the existence of the other horn of the dilemma (“that retroactive application of the entire amended version of 8 U. S. C. § 1252 would threaten to render meaningless section 306(c) of IIRIRA,” ibid.), and resolved the difficulty to its satisfaction by concluding that “at least some of the other provisions of section 1252” must be included in subsection (g) “when it applies to pending cases.” Ibid, (emphasis added). One of those provisions, it thought, must be subsection (f), entitled “Limit on Injunctive Relief,” which reads as follows:
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated.”
The Ninth Circuit found in this an affirmative grant of jurisdiction that covered the present ease. The Attorney General argued that any such grant of jurisdiction would be limited (and rendered inapplicable to this case) by § 1252(b)(9), which provides:
“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this chapter shall be available only in judicial review of a final order under this section.”
The Ninth Circuit replied that, even if § 1252(b)(9) were one of those provisions incorporated into the transitional application of § 1252(g), it could not preclude this suit for the same reason A ADC I had held that § 1105a could not do so— namely, the Court of Appeals’ lack of access to factual findings regarding selective enforcement.
Even respondents scarcely try to defend the Ninth Circuit’s reading of § 1252(f) as a jurisdictional grant. By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231, but specifies that this ban does not extend to individual cases. To find in this an affirmative grant of jurisdiction is to go beyond what the language will bear.
We think the seeming anomaly that prompted the parties’ strained readings of § 1252(g) — and that at least accompanied the Court of Appeals’ strained reading — -is a mirage. The parties’ interpretive acrobatics flow from the belief that § 306(c)(1) cannot be read to envision a straightforward application of the “[ejxcept as provided in this section” portion of § 1252(g), since that would produce in all pending INS cases jurisdictional restrictions identical to those that were contained in IIRIRA anyway. That belief, however, rests on the unexamined assumption that § 1252(g) covers the universe of deportation claims — that it is a sort of “zipper” clause that says “no judicial review in deportation cases unless this section provides judicial review.” In fact, what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her “decision or action” to “commence proceedings, adjudicate cases, or execute removal orders.” (Emphasis added.) There are of course many other decisions or actions that may be part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.
It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetie to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting. We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation; and that those who enacted IIRIRA were familiar with the normal manner of imposing such a limitation is demonstrated by the text of § 1252(b)(9), which stands in stark contrast to § 1252(g).
It could be argued, perhaps, that § 1252(g) is redundant if it channels judicial review of only some decisions and actions, since § 1252(b)(9) channels judicial review of all of them anyway. But that is not so, since only § 1252(g), and not § 1252(b)(9) (except to the extent it is incorporated within § 1252(g)), applies to what § 309(e)(1) calls “transitional eases,” that is, eases pending on the effective date of IIRIRA. That alone justifies its existence. It performs the function of categorically excluding from non-final-order judicial review — even as to transitional cases otherwise governed by § 1105a rather than the unmistakable “zipper” clause of § 1252(b)(9) — certain specified decisions and actions of the INS. In addition, even after all the transitional cases have passed through the system, § 1252(g) as we interpret it serves the continuing function of making it clear that those specified decisions and actions, which (as we shall discuss in detail below) some courts had held not to be included within the non-final-order review prohibition of § 1105a, are covered by the “zipper” clause of § 1252(b)(9). It is rather the Court of Appeals’ and the parties’ interpretation which renders § 1252(g) entirely redundant, adding to one “zipper” clause that does not apply to transitional eases, another one of equal scope that does apply to transitional eases. That makes it entirely inexplicable why the transitional provisions of § 306(c) refer to § 1252(g) instead of § 1252(b)(9) — and why § 1252(g) exists at all.
There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commencing] proceedings, adjudicating] cases, [and] executing] removal orders” — which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience. As one treatise describes it:
“To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as nonpriority and is now designated as deferred action. A ease may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §72.03[2][h] (1998).
See also Johns v. Department of Justice, 653 F. 2d 884, 890-892 (CA5 1981). Since no generous act goes unpunished, however, the INS’s exercise of this discretion opened the door to litigation in instances where the INS chose not to exercise it.
“[I]n each such instance, the determination to withhold or terminate deportation is confined to administrative discretion.... Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.” Gordon, Mailman, & Yale-Loehr, supra, § 72.03[2][a] (footnotes omitted).
Such litigation was possible because courts read §1105a,s prescription that the Hobbs Act shall be “the sole and exclusive procedure for the judicial review of all final orders of deportation” to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review. See, e. g., Cheng Fan Kwok v. INS, 392 U. S. 206 (1968) (review of refusal to stay deportation); Ramallo v. Reno, Civ. No. 95-01851 (D. D. C., July 23, 1996) (review of execution of removal order), described in and rev’d on other grounds, 114 F. 3d 1210 (CADC 1997); AADC I, 70 F. 3d 1045 (CA9 1995) (review of commencement of deportation proceedings); Lennon v. INS, 527 F. 2d 187, 195 (CA2 1975) (same, dicta). Section 1252(g) seems clearly designed to give some measure of protection to “no deferred action” decisions and similar discretionary determinations, providing that if they are reviewable at
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207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
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.
O’BRYAN, O’BRYAN & O’BRYAN v. Wm. M. HARRISON, Successor Trustee.
No. 6262.
United States Court of Appeals Tenth Circuit.
Dec. 2, 1959.
W. H. Pat O’Bryan, Oklahoma City, Okl., for appellant.
Luther Bohanon, and James D. Fellers, Oklahoma City, Okl., for appellee.
Before LEWIS and BREITENSTEIN, Circuit Judges, and CHRISTENSON, District Judge.
PER CURIAM.
Appeal dismissed on motion of appellee on ground that the notice of appeal was not timely filed.
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_genresp2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
UNITED STATES of America and Bradley P. Whites, Special Agent of the Internal Revenue Service, Appellees, v. NORTHWESTERN NATIONAL BANK, through Wallace B. Hanson, Vice-President; and First Baltic Branch, First National Bank of Sioux Falls, through Lynn Aspaas, Vice-President, Respondents, v. Robert A. LARSEN, Intervenor-Appellant.
No. 80-1559.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 11, 1980.
Decided Nov. 14, 1980.
Robert A. Larsen, appellant-without counsel.
M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Daniel F. Ross, Philip I. Brennan, Attys., Tax Division, Dept, of Justice, Washington, D.C., filed brief, for appellees; Terry L. Pechota, U.S. Atty., of counsel.
Before BRIGHT, ROSS and McMILLIAN, Circuit Judges.
PER CURIAM.
Appellant, Robert A. Larsen (Taxpayer), appeals from an order of the district court enforcing two IRS summonses for the purpose of determining his income tax liability for 1977-78. Taxpayer in his pro se appeal asserts three principal challenges to the enforcement of the summonses: (1) the constitutionality of the IRS to issue the summonses and of the district court to enforce them; (2) the authority of the IRS and the jurisdiction of the district court on the basis that Federal Reserve notes are not legal tender and that only dollars containing gold or a mixture of gold and silver are constitutionally taxable; and (3) the issuance of the summonses was not in good faith. We affirm and dissolve the stay pending appeal.
Taxpayer’s constitutional challenge to the authority of the IRS to issue summonses and of the district court to enforce them is in reality a constitutional attack on the underlying statutory authority of the IRS, 26 U.S.C. § 7602, and of the district court, 26 U.S.C. §§ 7402(b) and 7604(a). Taxpayer’s constitutional attack on these statutes is without merit. Our court upheld the constitutionality of the challenged statutes in United States v. National Bank of South Dakota, 620 F.2d 193 (8th Cir. 1980). In addition, Taxpayer’s arguments that Federal Reserve notes are not taxable dollars and that the only “legal tender dollars” are those which contain a mixture of gold and silver have been consistently rejected by this court. United States v. Moon, 616 F.2d 1043, 1047-48 (8th Cir. 1980).
Finally, Taxpayer has also failed to overcome the government’s prima facie showing of good faith. Through the testimony of its agent, Bradley P. Whites, at the show cause hearing, the IRS made a prima facie showing that (1) the investigation was being conducted for a legitimate purpose; (2) the inquiry was relevant to that purpose; (3) the information sought was not already in the Commissioner’s possession; and (4) the administrative steps required by the Internal Revenue Code have been properly followed. United States v. LaSalle National Bank, 437 U.S. 298, 313-14, 98 S.Ct. 2357, 2365-66, 57 L.Ed.2d 221 (1978).
Taxpayer asserts that the sole purpose of the investigation was criminal. In support of this assertion, he points to the testimony of Special Agent Bradley P. Whites that the investigation was conducted through the Criminal Investigation Division of the IRS, and to a letter dated March 3, 1980, which he received from the group manager of the Criminal Investigation Division notifying Taxpayer that he was being investigated for possible criminal violations and for a determination of his income tax liability for 1977-78. The letter also reminded Taxpayer of his fifth amendment rights and warned him that any information or documents that he may turn over to the IRS might be used against him if a criminal proceeding would ever be undertaken. This evidence only proves that a joint criminal and civil investigation was undertaken. It does not prove bad faith, especially in the light of the additional testimony of Agent Whites that the investigation was carried on in cooperation with the Examination Division and that the IRS had not recommended a criminal prosecution of Taxpayer to the Department of Justice. Noting the inseparability of criminal and civil goals in an IRS investigation, the courts have been extremely reluctant to find bad faith in the absence of a recommendation of a criminal prosecution to the Department of Justice. See, e. g., United States v. First National Bank of New Jersey, 616 F.2d 668, 671 (3d Cir. 1980). While there might be some extraordinary circumstances with which a taxpayer might prove bad faith in the absence of a recommendation to prosecute, Taxpayer has failed to prove any such extraordinary circumstance. See United States v. Garden State National Bank, 607 F.2d 61, 66-70 (3d Cir. 1979); United States v. Genser, 595 F.2d 146 (3d Cir. 1979) (Genser II).
We conclude that the district court properly ordered the summonses enforced. The order of the district court enforcing the summonses is affirmed and the stay pending appeal is dissolved.
. The Honorable Fred J. Nichol, United States Senior District Judge for the District of South Dakota.
. The relevant parts of the letter read:
As you know, you are being investigated for possible criminal violations of the Internal Revenue Code for 1977 and 1978. This includes a determination of your correct income tax liability for those years. On January 8, 1980 Mr. Whites attempted to talk to you about this in Sioux Falls; however, you refused to talk to him.
******
This letter does not constitute your solicitation for corrected or amended tax returns from you. You are still under investigation for possible criminal violations of the Internal Revenue laws, and as such you should be aware of your rights under the 5th Amendment to the U. S. Constitution. Thus, any information or documents you may send to us could be used against you in any criminal proceedings which may be undertaken. In this regard, you may wish to seek the assistance of an attorney before responding in the future.
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_district | H | 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".
McREYNOLDS v. NATIONAL WOODWORKING CO., Inc.
Court of Appeals of District of Columbia.
Submitted March 8, 1928.
Decided May 7, 1928.
No. 4582.
1. Contracts @=205 — Guaranty to lay linoleum on concrete floor in satisfactory workmanlike manner, after recommending such covering, constituted guaranty to lay it under existing conditions.
Where person making estimate for remodeling automobile showroom recommended laying of linoleum on concrete floor, he was, in absence of fraud or concealment, charged with notice of conditions present, and guaranty to lay linoleum in a satisfactory workmanlike manner constituted guaranty to lay it under conditions then existing.
2. Contracts @=83 — Failure to complete contract In accordance with guaranty constitutes failure of consideration for note conditioned on guaranty.
A failure to complete contract to lay linoleum in a satisfactory workmanlike manner under existing conditions constitutes a failure of consideration for note executed on condition of continuance of such original guaranty.
3. Evidence @=508 — Expert testimony to establish fact that linoleum could not be laid successfully under circumstances in accordance with guaranty held erroneously excluded.
In action to recover on note executed in consideration of completion of contract to lay linoleum in satisfactory workmanlike manner, refusal to admit expert testimony to establish fact that linoleum could not be successfully laid on concrete floor resting on ground and without ventilation held erroneous, since, if it appeared as a fact that such a condition was present and plaintiff could have discovered it, plaintiff would be charged with notice of its existence.
4. Bills and notes @=451(1) — Promissory note at suit of original payee is subject to defenses available against enforcement of written contracts (Code, § 1332).
No particular sanctity attaches to a promis- ' sory note, and it is subject at suit of original payee to any of defenses available against enforcement of written contracts in accordance with provisions of Code, § 1332.
Appeal from the Supreme Court of the District of Columbia.
Suit by the National Woodworking Company, Incorporated, against William E. Mc-Reynolds. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.
W. J. Lambert, R. H. Yeatman, A. M. Schwartz, and W. N. Tobriner, all of Washington, D. C., for appellant.
D. T. Wright and Philip Ershler, both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellee, National Woodworking Company, •brought suit against appellant in the Supreme Court of the District of Columbia to recover on a note for the sum of $1,500, with interest, alleging that the note was overdue and unpaid.
Defendant filed three pleas, substantially as follows:
(1) That he was not indebted in manner and form alleged.
(2) That plaintiff contracted with defendant to remodel his automobile showroom vfor a consideration of $4,200, which included the laying of linoleum on the concrete floor; that plaintiff had recommended to defend•ant the use of linoleum, and agreed to lay it in a first-class workmanlike manner; that defendant paid plaintiff various sums on account of the contract until it was reduced to $1,500, represented by the note sued upon; that plaintiff failed to perform his contract in respect of laying the linoleum as agreed, in that the linoleum, after being laid, broke away from the concrete; that plaintiff then agreed that defendant should withhold the sum of $1,500, the cost of laying the linoleum, and defendant should deliver to plaintiff his promissory not? in that amount, payable one month after date, in consideration of which defendant agreed to immediately proceed to lay said linoleum as agreed upon, to the full satisfaction of the defendant; that the note was given by defendant on the assurance of plaintiff that the linoleum would be laid “in a first-class workmanlike manner, and in such a way as to fully satisfy” defendant; and that defendant failed to carry out his agreement in this respect.
(3) A set-off in the sum of $2,000 as damages for failure to lay the floor in the manner called for by the original contract.
To the plea of set-off plaintiff pleaded a general denial.
It appears from the reeord that plaintiff company, entered into a contract with defendant to remodel defendant’s automobile showroom for the sum of $4,200, which, among other things, included the laying of linoleum over a concrete floor; that when the work was completed the linoleum would not adhere to the floor, but crumpled up, overlapped, and was unsightly, and of no use to the defendant; that plaintiff company made repeated efforts to put the floor in condition, meeting with failure in each instance; that it was during these proceedings, and while plaintiff was attempting to complete the work, that a settlement was had, resulting in the giving of the $1,500 note, upon the alleged condition that it should only be paid in the event that the work was completed in a satisfactory workmanlike manner.
It appears from the testimony of the defendant that, when the plans for the improvements were completed, plaintiff company requested that it be given an opportunity to submit a bid upon the work. This was granted. When Mr. Beetham, president of the company, was inspecting the premises, preliminary to submitting an estimate for the work, he suggested that the concrete floor in the building could be covered with linoleum, assuring defendant “that they could lay linoleum over the witness’ floor; that they have laid it in different places and that it has always been satisfactory; that witness said that he was a little leery of linoleum, and Mr. Beetham replied that he need not be leery of it, because the plaintiff would stand behind it, and that is why the witness accepted the estimate.” This testimony of the defendant was not denied by Mr. Beetham, though he appeared as a witness in the case. We think the case centers around this recommendation and guaranty, made by Mr. Beetham as president of plaintiff company.
It is now contended on the part of the plaintiff that the reason for. the failure to satisfactorily lay the linoleum was due to the collection under it of moisture from the concrete, disintegrating and loosening the cement used to hold the linoleum in place; that the collection of the moisture was due to the fact that the cement was laid upon the ground, with no ventilation under it, and to the collection of moisture through seepage from the alley adjacent to the building; and that the guaranty of the plaintiff company did not contemplate or take into consideration these unforeseen conditions.
Objection was interposed, and sustained, to defendant’s offer to prove by an expert witness that dampness would collect on a concrete floor covered with linoleum, when the floor is laid upon the ground with no air sid ace under it. The court, sustaining the objection to this evidence, said: “In my view of the case, I do not believe that these contractors were obliged to know anything about the configuration of the ground over there in that neighborhood. It is not a part of their job. ‘There is a floor. Lay linoleum on it.’ That is all they are concerned with, unless, as I say, something sticks right out and hits them in the face, that they ought to pay attention to.”
It is urged by counsel for plaintiff, and was so held by the court below, that the defense of failure of consideration of the note is not available under defendant’s second plea. The court submitted the case to the jury upon the sole ground of whether or not the linoleum was laid in a first-class workmanlike manner, instructing the jury that,1 if they so found, then they could not allow any set-off, “and must return a verdict for the full $1,500, the amount of the note, with interest at 6 per cent, from April 8, 1925. The plaintiff was not responsible for the floor on which the linoleum was laid; and if you And that the linoleum was laid in a first-class workmanlike manner, and became unsatisfactory because moisture came through the floor, then you cannot allow a set-off.” The court summarized its charge in the following language: “The plaintiffs are entitled to recover on this note. So, when you come to consider the matter, you have got to start out with the proposition that, so far as the note itself is concerned, the plaintiff is entitled to $1,500, with interest. Then you come to the question of whether or not this linoleum was laid in a first-class workmanlike manner, and whether the only reason why it buckled, and did these other things, was due to this water. If it was due to the water, then that is something the plaintiffs are not responsible for.”
We are of opinion that the whole theory upon which the case was submitted to the jury is erroneous, both on the law and the evidence. When Beetham, the president of the company, as a basis of plaintiff’s estimate on the work, recommended to defendant the laying of the linoleum on the concrete floor, and defendant expressed, a doubt as to whether this could be successfully done, plaintiff, in the absence of fraud or concealment by defendant, was charged with notice of the conditions present — whether the floor was laid on the ground or was ventilated under, and whether the topographical conditions outside were such as to probably produce moisture when the linoleum was laid. These were conditions of which plaintiff company was charged with' notice on taking the contract; and its conceded, guaranty to lay the linoleum in a satisfactory workmanlike manner was a guaranty to so lay it under the conditions there existing; and the failure to complete the contract as so made, if the original guaranty be found to have been continued as a condition of giving the note, constitutes a failure of consideration for the note.
In this view of the ease, it was error to refuse to admit expert testimony to establish the fact that linoleum cannot be laid successfully upon a concrete floor that rests on the ground, and without ventilation under it. If it should appear as a fact that such a condition was present in this ease, and plaintiff’s agent by proper, inspection could have discovered it, plaintiff would be charged with notice of its existence. It was upon the recommendation of Mr. Beetham, president of plaintiff company, that defendant was induced to use linoleum. He had the right to assume that plaintiff’s president and contracting agent possessed full knowledge of the business in which plaintiff was engaged, and which held itself out to the public as a concern capable of performing work of the character defendant desired done in a satisfactory, skillful, and workmanlike manner.
No particular sanctity attaches to a promissory note. It is subject, at the suit of the original payee, to any of the defenses available against the enforcement of written contracts. Section 1332 of the District Code provides: “Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”
Tyler v. Mutual District Messenger Co., 17 App. D. C. 85, was an action on quantum meruit for work performed, in which the defendant interposed the plea of not indebted as alleged, and also pleaded a special contract and the failure of plaintiff to perform the contract as agreed, resulting in damage to defendant. The court, considering the evidence admissible under this plea, said: “As will be observed, the terms of the contract are not set forth, nor is it made apparent by the plea whether the alleged, breach of the contract is set up by way of set-off, or by way of recoupment or deduction. The plaintiff, however, joined issue upon all three of the pleas; and under the issue thus formed upon the third plea, or even under the general issue plea of not indebted as alleged, it was competent to the defendant to show by proof that the work and labor and services declared for by the plaintiff were done and supplied under a special contract, and that such work and services were so negligently and unskillfully done and performed as to be of little or no value to the defendant, or that the contract had been violated by the plaintiff to the injury of the defendant, and therefore the latter was entitled to a deduction of the damages thus occasioned by the breach by the plaintiff. This is now the settled principle, both in the English and American courts.”
In Durant v. Murdock, 3 App. D. C. 114, defendant pleaded both failure of consideration and set-off to a declaration on a promissory note, and, while the plea of set-off was held barred by the statute of limitations, the court in its opinion said: “The failure of consideration, and the set-off pleaded by the appellant in defense of the suit, are entitled to more consideration from us. Failure of consideration is, of course, a good defense as against the payee in a promissory note; and a proper set-off is always, under existing law, properly pleadable in bar of a plaintiff’s demand.”
In Withers v. Greene, 9 How. 220, 230, 13 L. Ed. 109, the court, reviewing a judgment on demurrer to a plea of failure of consideration said: “Where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied pn in defense by a party, when sued upon such contracts, and that he shall not be driven to assert them, either for protection, or as a ground for compensation in a cross-action. * * * In the ease of Sill v. Rood, 15 Johns. [N. Y.], 230, which was an action on a promissory note given for the price of a chattel, the defendant was allowed, under the general issue, to show deceit in the sale. And it was holden, further, that a promissory note given for the price of a chattel represented to be valuable, when in truth it was of no value, is without consideration and void.”
No objection was made by counsel for plaintiff by way of demurrer to the second plea, nor to the introduction of proof by defendant in support of the failure of consideration for the note. We think the plea is sufficient to raise this issue, and the case should have been submitted to the jury upon that theory. Nor are we concerned with the suggestion that the contract, upon which the alleged consideration for the note is based, is not binding on the company. It was made by an officer of the company, and we consider it immaterial whether it was made with or without direct authority from the company itself. The company was engaged in the contracting business. It held itself out as prepared to do this sort of business. It transacted its business through its officers, and defendant had the right to assume that the officer, the secretary of the company, with whom he dealt when the note was given, was authorized to act in the premises. Sueh authority will be presumed.
The whole issue here is one of faet for the jury, under proper submission by the court, as to whether or not on the issue raised by defendant’s second plea, or indeed by the. plea of not indebted, there was a lack of .consideration for the note, and, if so, ■whether or not there was a total or partial lack of consideration. If, on retrial, the second plea should be regarded as insufficient to sustain the proof interposed in support of defendant’s case, it may be amended.
The judgment is reversed, with costs, and the ease is remanded for a new trial.
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_initiate | A | 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.
Evelyn COTTO and Edwin Torres, etc., et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
No. 92-2440
United States Court of Appeals, First Circuit.
Heard May 4, 1993.
Decided May 19, 1993.
Peter John Porrata, Hato Rey, PR, for plaintiffs, appellants.
Fidel A. Sevillano del Rio, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, PR, was on brief, for defendant, appellee.
Before SELYA, Circuit Judge, FEINBERG, Senior Circuit Judge, and STAHL, Circuit Judge.
Of the Second Circuit, sitting by designation.
SELYA, Circuit Judge.
This appeal arises out of an action brought against the United States by family members and personal representatives of an injured minor under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1990). Long after the district court dismissed the case, plaintiffs sought to revivify it but failed. Believing, as we do, that the district court appropriately rebuffed the attempted resurrection, we affirm the judgment below.
I. BACKGROUND
The incident that sparked this case occurred on December 13, 1987, when a small child, Alexis Agosto, caught his hand in a conveyer belt operated by an employee of the United States Department of Agriculture (DOA). On February 24,1989, Agosto’s parents and grandparents filed FTCA claims on Agosto’s and their own behalf. On April 21, DOA responded, requesting medical records, itemized bills, and other details. Plaintiffs retained counsel. On November 29, 1989, their attorney notified DOA that he would supply pictures of Agosto’s injured hand, apparently believing that the photographs would satisfy DOA’s curiosity anent the extent of injury. He was wrong. DOA, unmol-lified, wrote to the lawyer on March 5, 1990, reiterating its need for the information previously requested and mentioning that plaintiffs’ claim forms were incomplete. The letter also stated:
Please bear in mind that the claims must be substantiated and that we must have the information requested before a determination can be made by [the appropriate official]. No further action will be taken on these claims until the information requested has been received (emphasis in original).
Instead of submitting further particulars, plaintiffs brought suit. They alleged, inter alia, that “[n]o affirmative action as to any settlement or responsibility has been taken by [DOA], although a copy of the medical record has been provided to them [sic].” This allegation was seemingly an endeavor to show that, despite the lack of an explicit denial, DOA had implicitly denied plaintiffs’ claim, thus satisfying the FTCA’s exhaustion requirement. See 28 U.S.C. § 2675(a).
The government answered the complaint, asserting inter alia that plaintiffs had yet to file a substantiated, completed administrative claim, and, therefore, had not exhausted their administrative remedy. On August 27, 1990, a magistrate judge stayed proceedings for ninety days to allow plaintiffs a final opportunity “to provide defendant’s claim specialist with the necessary documentation so that defendant may either accept or reject the claim.” The stay proved unproductive. On November 28, 1990, the magistrate convened the next scheduled conference, noted plaintiffs’ counsel’s absence, and reported to the district judge that “the government will shortly move to dismiss the complaint for failure to exhaust administrative remedy.” Even so, some settlement negotiations continued.
To make a tedious tale tolerably terse, the government, prodded by the district judge, moved for dismissal on May 15, 1991. The motion papers averred that plaintiffs had failed to prosecute their claims diligently at either the administrative or judicial levels. Among other things, the government proffered the affidavit of a local DOA staffer attesting to plaintiffs’ failure to perfect their administrative claims. Without waiting for plaintiffs’ objection, the district court dismissed the ease with prejudice under Fed. R.Civ.P. 41(b). Judgment entered on May 28, 1991.
At that point, plaintiffs and their lawyer, figuratively speaking, played the ostrich, burying their heads in the sand and ignoring the adverse judgment. They did not ask that the dismissal be vacated so that their opposition, see supra note 1, might be more fully considered; they did not move for reconsideration of the order; they did not take an appeal; they did not seasonably seek post-judgment relief. Withal, plaintiffs suggest that they continued to pursue negotiations, eventually reaching what plaintiffs’ counsel describes as a tentative agreement (ironically, with the same DOA representative who had executed the aforementioned affidavit) for a $60,000 settlement. They concede, however, that the United States Attorney’s office declined to approve any settlement, presumably because the lawsuit had been dismissed with prejudice. They also concede that they never asked the district court to enforce the supposed settlement. Rather, plaintiffs resumed their struthionine pose. It was not until September 28, 1992 — sixteen months to the day after judgment entered— that they filed a motion under Fed.R.Civ.P. 60(b)(6). The court below denied the motion without fanfare. This appeal followed.
II. ANALYSIS
District courts enjoy considerable discretion in deciding motions brought under Civil Rule 60(b). We review such rulings only for abuse of that wide discretion. See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir.1992); Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.1988).
In this case, plaintiffs’ theory seems to be that, because DOA’s representative continued to negotiate after judgment entered, the lower court should have excused plaintiffs’ failure to appeal or otherwise contest the dismissal. This contention has a variety of flaws. Without endeavoring to cover the waterfront, we offer four reasons why plaintiffs’ theory is unavailing. In the course of that recital, we assume the truth of the fact-specific statements contained in plaintiffs’ motion, but do not credit “bald assertions, unsubstantiated conclusions, periphrastic circumlocutions, or hyperbolic rodomontade.” Superline, 953 F.2d at 18.
First: Rule 60(b) seeks to balance the importance of finality against the desirability of resolving disputes on the merits. See id. at 19. The rule’s first five subsee-tions delineate specific grounds for relief. In keeping with the policy that “there must be an end to litigation someday,” Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211-212, 95 L.Ed. 207 (1950), the rule imposes a one-year limit on motions that invoke clauses (1) — (3). While this limit does not apply in haec verba to clause (6) — as the rule states, motions invoking clauses (4) — (6) must only “be made within a reasonable time” — clause (6) is designed as a catchall, and a motion thereunder is only appropriate when none of the first five subsections pertain. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 & n. 11, 108 S.Ct. 2194, 2204 & n. 11, 100 L.Ed.2d 855 (1988); Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 389, 93 L.Ed. 266 (1949); Lubben v. Selective Serv. Sys. Local Bd., 453 F.2d 645, 651 (1st Cir.1972).
Here, plaintiffs’ attempt to garb their motion in the raiment of clause (6) runs aground on the bedrock principle that clause (6)may not be used as a vehicle for circumventing clauses (1) through (5). The essence of plaintiffs’ argument is that, under all the circumstances, their failure to contest the dismissal constituted understandable, ergo, excusable, neglect. On its face, that theory falls squarely within the encincture of Rule 60(b)(1) and, as such, plaintiffs’ motion, filed more than one year after the entry of judgment, was time-barred. See Pioneer Inv. Servs. Co. v. Brunswick Assoc., — U.S. -, -, 113 S.Ct. 1489, 1497, 123 L.Ed.2d 74 (1993) (explaining that, where “a party is partly to blame for the delay,” post-judgment relief “must be sought within one year under subsection (1)”).
Second: Plaintiffs’ belated effort to set aside the adverse judgment also runs afoul of the admonition that Rule 60(b)(6) may not be used to escape the consequences of failure to take a timely appeal. See Ackermann, 340 U.S. at 197-200, 71 S.Ct. at 211-212; Mitchell v. Hobbs, 951 F.2d 417, 420 (1st Cir.1991); Lubben, 453 F.2d at 651; see also Ojedar-Toro, 853 F.2d at 28-29 (collecting cases). In our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his or her own interests. See Ackermann, 340 U.S. at 197, 71 S.Ct. at 211. Thus, Rule 60(b)(6) may not be used as a back-door substitute for an omitted appeal, and, in all but the most exceptional circumstances, a party’s neglect to prosecute a ti-meous appeal will bar relief under the rule. See Ackermann, 340 U.S. at 197-202, 71 S.Ct. at 211-213; Mitchell, 951 F.2d at 420; United States v. Parcel of Land, Etc. (Woburn City Athletic Club, Inc.), 928 F.2d 1, 5 (1st Cir.1991); Lubben, 453 F.2d at 651.
There are no sufficiently exceptional circumstances here. To be sure, plaintiffs strive to show the contrary. Citing United States v. Baus, 834 F.2d 1114 (1st Cir.1987), they argue that DOA acted in a Svengali-like manner, lulling them to sleep with settlement songs while the sands of time drained and the appeal period expired. This deception, they say, justifies relief under Rule 60(b)(6). The district court did not agree. Nor do we.
Baus is readily distinguishable. There, defendants (the guarantors of a debt owed to a federal agency) moved, long after the fact, for relief from a judgment entered pursuant to a settlement agreement they had made with the United States. Id. at 1115— 16. We determined that the government had been dilatory in performing its side of the bargain and had probably breached its obligations under the settlement agreement. Id. at 1124-25. We also noted that three Assistant United States Attorneys had assured the defendants that a further judicial determination of indebtedness was necessary before the United States could collect on the guarantees, and that the defendants relied on these assurances. Id. at 1117. In such straitened circumstances, we ruled that the government, by virtue of a combination of dilatory practices, disregard of contractual obligations, and repeated assurances, had so muddied the waters that it “would result in manifest unfairness to deny relief’ under Rule 60(b)(6). Id. at 1128.
The case at bar is far removed from Bans. The plaintiffs’ Rule 60(b)(6) motion makes no claim that, but for some misleading conduct attributable to the government, plaintiffs would have prosecuted a timely appeal. There is nothing in the present record to demonstrate that the government stalled the processing of the claims, breached any promise, or otherwise acted in bad faith; even in this court, plaintiffs do not suggest that the government ever said it would waive the exhaustion requirement or overlook the judgment’s legal effect. There is, moreover, nothing to indicate any kind of impediment to plaintiffs’ ability to protect their legal interests in a timely manner. Unlike in Bans, the plaintiffs instigated the litigation. They knew the status of their claims at all stages. They could have appealed from the entry of judgment, but did not. And, finally, the plaintiffs appreciated the significance of the judgment.
Because plaintiffs advance neither an objectively reasonable basis for not challenging the judgment in a timely manner nor evidence indicating a pattern of affirmative action on the government’s part which would have led a reasonably prudent person to believe that the dismissal order was something other than it was, Bans does not assist their cause. Rather, we think that plaintiffs’ situation is much more akin to Ackermann. After suffering an adverse judgment in denaturalization proceedings and failing to prosecute a timely appeal, Ackermann sought relief under Rule 60(b)(6). 340 U.S. at 194-95, 71 S.Ct. at 209-210. He alleged, inter alia, that he relied upon advice from a government official who assured him there was no need to appeal as he would ultimately be released. See id. at 196, 71 S.Ct. at 210. In affirming the denial of Ackermann’s Rule 60(b)(6) motion, the Court stated:
It is not enough for petitioner to allege that he had confidence in [the government official] ... [A]nything said by [the government official] could not be used to relieve petitioner of his duty to take legal steps to protect his interest in litigation in which the United States was a party adverse to him.
Id. at 197, 71 S.Ct. at 211 (citations omitted). In language which appears patently pertinent to the pitiful predicament of the present plaintiffs, the Court concluded that, since Ackermann had made “a considered choice not to appeal,” he “cannot not be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the [final] outcome.” Id. at 198, 71 S.Ct. at 212. So here. Even if plaintiffs reasonably believed that DOA’s representative had authority to negotiate a settlement, this belief in no way gave them an indeterminate carte blanche to ignore the district judge’s entry of a final judgment. See, e.g., Lubben, 453 F.2d at 652 (suggesting that, so long as the decision not to take an appeal was one of unfettered choice and free will, courts should refrain from speculating on the reasons why a laggard party did not seasonably pursue an attack on an adverse judgment).
We will not paint the lily. “[T]o justify relief under subsection (6), a party must show extraordinary circumstances suggesting that the party is faultless in the delay.” Pioneer, — U.S. at -, 113 S.Ct. at 1497. The instant plaintiffs do not qualify under so rigorous a standard. Their unilateral assumption that they could negotiate and settle their claims notwithstanding the court’s decree falls woefully short of establishing either their own lack of fault or the kind of exceptional circumstances necessary for relief under Rule 60(b)(6).
Third: Assuming, for argument’s sake, that plaintiffs’ motion was otherwise within the rule’s purview, it would nevertheless fail on temporal grounds. We explain briefly.
A Rule 60(b)(6) motion “must be made within a reasonable time.” What is “reasonable” depends on the circumstances. Cf, e.g., Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.1987) (explaining that “reasonableness is a mutable cloud, which is always and never the same”) (paraphrasing Emerson). Thus, a reasonable time for purposes of Rule 60(b)(6) may be more or less than the one-year period established for filing motions under Rule 60(b)(1) — (3). See Planet Corp. v. Sullivan, 702 F.2d 123, 125-26 (7th Cir.1983) (“The reasonableness requirement of Rule 60(b) applies to all grounds; the one year limit on the first three grounds enumerated merely specifies an outer boundary.”).
Here, plaintiffs waited sixteen months before filing their motion. This delay — overlong in virtually any event — must be juxtaposed in this case against plaintiffs’ bold assertion that the supposed $60,000 settlement figure was agreed upon “within two months of the entry of the order of dismissal.” Appellants’ Brief at 7. If, as plaintiffs allege, they achieved so prompt a meeting of the minds, there is no valid excuse for having dawdled an additional fourteen months before alerting the district court to the changed circumstances. Such protracted delay scuttles any claim that plaintiffs’ motion was “made within a reasonable time.” See, e.g., Planet Corp., 702 F.2d at 126 (holding, on particular facts, that a six-month delay in making a Rule 60(b)(6) motion was unreasonably dilatory); Central Operating Co. v. Utility Workers of America, AFL-CIO, 491 F.2d 245, 253 (4th Cir.1974) (similar; four-month delay after notice of default judgment). Having failed to move for relief from the judgment within a reasonable time, plaintiffs’ attempt to bootstrap the alleged settlement agreement onto their “exceptional circumstance” argument is futile.
Fourth: An additional precondition to relief under Rule 60(b)(6) is that the movent make a suitable showing that he or she has a meritorious claim or defense. See Superline, 953 F.2d at 20; Woburn City Athletic Club, 928 F.2d at 5. The plaintiffs stumble over this hurdle. Their motion for relief from judgment is utterly silent on the exhaustion issue and the record is devoid of any indication that they, to this day, have ever complied with the FTCA’s administrative claim requirements. Exhaustion of plaintiffs’ administrative remedies is a jurisdictional prerequisite to the prosecution of their FTCA claims. See 28 U.S.C. § 2675(a); see also Swift v. United States, 614 F.2d 812, 814-15 (1st Cir.1980). Thus, notwithstanding plaintiffs’ assertion that they received some settlement offer from DOA, the district court was entitled to conclude “that vacating the judgment [would] be an empty exercise.” Superline, 953 F.2d at 20.
III. CONCLUSION
We are not unsympathetic to plaintiffs’ plight. It appears that a young boy suffered severe injuries; that at least one federal official believes the boy’s claim should be compensated; and that, as matters stand, plaintiffs have quite likely been victimized by a series of blunders on their lawyer’s part (for which they may have a claim against him). But in our adversary system, the acts and omissions of counsel are customarily visited upon the client in a civil case, see, e.g., Link v. Wabash R.R., 370 U.S. 626, 632-34, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734 (1962); United States v. $25,721. 938 F.2d 1417, 1422 (1st Cir.1991); Woburn City Athletic Chib, 928 F.2d at 6; United States v. 3,888 Pounds of Atlantic Sea Scallops, 857 F.2d 46, 49 (1st Cir.1988), and we see no legally cognizable basis for departing from this well-established principle here. On this poorly cultivated record, we cannot say that the district court abused its discretion in refusing to reopen the final judgment.
We do not believe, however, that the lawyer’s conduct should go unremarked. A judge has an abiding obligation to take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge becomes aware. See ABA Code of 'Judicial Conduct Canon 3(D)(2) (1990). We are of the opinion that plaintiffs’ counsel’s handling of this matter before the lower court raises serious questions from start to finish. We therefore direct the district judge to review the record, conduct such further inquiry as he may deem appropriate, and take or initiate such disciplinary action, if any, as is meet and proper, the circumstances considered. The clerk of the district court shall also mail a copy of this opinion (translated into the Spanish language if the district judge believes such translation would be advisable) to each of the plaintiffs, at their respective home addresses. See, e.g., Doyle v. Shubs, 905 F.2d 1, 3 (1st Cir.1990) (per curiam).
Affirmed. Remanded to the district court, with instructions, for consideration of a collateral matter.
. Plaintiffs filed an opposition to the dismissal motion one day after the judge granted the government’s motion but five days before final judgment entered.
. It is transparently clear that the DOA staffer had no authority to settle the claim without the approval of an appropriate Justice Department official or, perhaps, the Secretary of Agriculture. See 28 U.S.C. § 2672 (providing that FTCA settlements in excess of $25,000 may only be effected with the prior written approval of the Attorney General or his designee; providing further that, apart from Justice Department personnel, only "the head of the agency" may serve as the Attorney General’s delegee).
.Plaintiffs’ motion for relief from judgment mentioned the negotiations, but contained no substantiation for the claimed settlement: no confirmatory correspondence, no affidavit from the DOA official who allegedly participated in the negotiations, no affidavit from plaintiffs’ lawyer.
. The rule states:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application, or
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment order or proceeding was entered or taken.
Fed.R.Civ.P. 60(b).
. Furthermore, the judgment in Bans entered pursuant to a stipulation; thus, the defendants had no right of direct appeal. After all, a party who has agreed to the entry of a judgment without any reservation may not thereafter seek to upset the judgment, save for lack of actual consent or a failure of subject matter jurisdiction. See Dorse v. Armstrong World Indus., Inc., 798 F.2d 1372, 1375 (11th Cir.1986); 9 James W. Moore et al., Moore's Federal Practice ¶ 203.06 (2d ed. 1993) (“A party that consents to entry of a judgment waives the right to appeal from it.”).
. The motion papers contain no allegation either that the DOA official who ostensibly conducted the negotiations knew about the entry of judgment or that plaintiffs' counsel discussed that subject with DOA personnel.
.'It is beyond peradventure that plaintiffs recognized the import of the order dismissing the case with prejudice. It was for this very reason that plaintiffs, in their opposition to the Rule 41 motion, argued vociferously that they should be allowed to take a voluntary dismissal without prejudice under Rule 41(a)(1) rather than having their case dismissed with prejudice under Rule 41(b). In support of this position, plaintiffs claimed that negotiations were ongoing and settlement was "imminent.” Given these contemporaneous statements, it is disingenuous of plaintiffs’ counsel to suggest that the continuation of settlement negotiations led him to forgo an appeal, thinking that the judgment could not block the realization of a negotiated settlement.
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_r_bus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Charles W. MABRA, Petitioner-Appellant, v. Ramon L. GRAY, Respondent-Appellee.
No. 74-1690.
United States Court of Appeals, Seventh Circuit.
Argued April 25, 1975.
Decided July 3, 1975.
Rehearing Denied Aug. 11, 1975.
Charles F. Crutchfield, Dennis Mulshine, law student, Notre Dame Law School, Notre Dame, Ind., Joseph P. Bauer, Notre Dame, Ind., for petitioner-appellant.
William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.
Before CUMMINGS, STEVENS and TONE, Circuit Judges.
STEVENS, Circuit Judge.
The question presented is whether appellant’s Fourth Amendment rights were violated by a custodial search of his wife’s purse and person. Currency, identified as the proceeds of a tavern holdup allegedly committed by appellant Mabra, was obtained during the search.
The appeal is from the denial of a petition for a writ of habeas corpus; appellant’s conviction of armed robbery while masked and first degree murder had previously been affirmed by the Wisconsin Supreme Court. State v. Mabra, 61 Wis.2d 613, 213 N.W.2d 545 (1974). Mabra and his wife were apprehended about four hours after the crime, the police investigation having revealed that Mrs. Mabra had borrowed the getaway car from her brother that morning and had not yet returned it. After what was apparently a cursory search for weapons at the time of arrest, Mr. and Mrs. Mabra were taken to the police station in separate vehicles. Thereafter a custodial search of Mrs. Mabra’s purse revealed $40.20, including sixteen $1 bills and the balance in change; a search of her person disclosed an additional $539 in currency; this evidence was admitted over objection at Mabra’s trial. On appeal from the denial of a motion for a new trial, the state Supreme Court held that Mabra had standing to challenge the validity of the search but that since Mrs. Mabra’s arrest was supported by probable cause, the search was proper.
As a matter of federal law, appellant may not assert an alleged violation of his wife’s Fourth Amendment rights as a basis for suppressing the evidence taken from her person. Alderman v. United States, 394 U.S. 165, 171-175, 89 S.Ct. 961, 22 L.Ed.2d 176; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697. Appellant argues that his rights were violated because the search of his wife was intended to uncover evidence that could be used against him; therefore, in the language used by Mr. Justice Frankfurter for the Court in Jones, he was “one against whom the search was directed.” 362 U.S. at 261, 80 S.Ct. at 731.
We may assume, even though the record is unclear on the point, that the police hoped to find evidence tending to incriminate Mabra when they searched his wife. Nevertheless, apart from that hope, they had two legitimate reasons for searching her that did not concern him. First, in connection with temporary incarceration at the police station, routine procedure includes a search to determine whether weapons or other dangerous instrumentalities are being brought inside. Second, since the police knew that Mrs. Mabra had procured the getaway car, they had reason to believe that she was involved in the robbery herself. Thus, if the search was designed to obtain evidence relating to the robbery, it was reasonable to expect that such evidence would be used against her. It is not accurate, therefore, to characterize the search as directed against her husband.
This is not a case in which Mabra can argue that there was an illegal invasion of his wife’s privacy for the sole purpose of obtaining evidence against him. We therefore need not squarely hold that he would not have standing to challenge the search in such circumstances, although we note respectable authority for a reading of the phrase “one against whom the search was directed” as merely another way of describing “a victim of a search or seizure,” rather than as an additional category of persons having standing to make the Fourth Amendment objection. See especially Chief Judge Murrah’s opinion in Sumrall v. United States, 382 F.2d 651, 654-655 (10th Cir. 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853, a case remarkably similar to this one on its facts. See also W. White & R. Greenspan, “Standing to Object to Search and Seizure,” 118 U.Pa.L.Rev. 333, 346-348 & n. 81 (1970). But see Judge Swygert’s concurring opinion in United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975).
M Neither the custodial search of Mrs. Mabra, nor the seizure from her person of the proceeds of the armed robbery violated Mabra’s Fourth Amendment rights. Cf. United States v. Lisk, No. 75-1033, 522 F.2d 228 (7th Cir. 1975). Accordingly, as a matter of federal law, he had no right to object to the admissibility of that evidence.
. Appellant’s counsel has correctly pointed out that a number of states have held that the deterrent purpose of the exclusionary rule justifies a defendant’s vicarious reliance on a violation of another person’s Fourth Amendment rights as a basis for objecting to the admissibility of illegally seized evidence. The leading case is Judge Traynor’s opinion in People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955). See also Wing v. State, 490 P.2d 1376 (Okl.Cr.App.1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1772, 32 L.Ed.2d 119. The Wisconsin Supreme Court also noted that the Model Code of PreArraignment Procedure, Official Draft No. 1, recommended by the American Law Institute on July 15, 1972, has recommended that the existing standing rules be relaxed to accord standing to a spouse of the person searched. See 61 Wis.2d at 621-622 n. 4, 213 N.W.2d 545. However, we are, of course, bound by the decisions of the United States Supreme Court; and it is perfectly clear that in a collateral attack on a state conviction, a federal court may only consider alleged violations of the petitioner’s federal constitutional rights as a basis for relief.
. The relevant sentence in Mr. Justice Frankfurter’s opinion reads as follows:
“In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.”
362 U.S. at 261, 80 S.Ct. at 731. The descriptions of (1) “a victim of a search”, and (2) “one against whom the search was directed” may be read as appositive.
. Nor do we believe there is any merit to Ma-bra’s contention that he was denied due process by the failure of the prosecutor to specify in the information which of the three paragraphs in Wis.Stat. § 939.05(2) (Parties to Crime) he was relying upon. State v. Cydzik, 60 Wis.2d 683, 688, 211 N.W.2d 421, 425 (1973).
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_caseoriginstate | 41 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
SMITH v. OHIO
No. 89-5999.
Decided March 5, 1990
Per Curiam.
This case raises the single question whether a warrantless search that provides probable cause for an arrest can nonetheless be justified as an incident of that arrest. A divided Ohio Supreme Court answered that question in the affirmative, reasoning that the search was neither remote in time nor place from the arrest. We disagree.
On a June evening, as petitioner and a companion exited a private residence and entered the parking lot of a YMCA, they were approached by two plainclothes officers of the Ash-land, Ohio, Police Department. The officers were driving-in an unmarked police vehicle. Petitioner was carrying a brown paper grocery bag with the words “Kash ’n Karry” and “Loaded with Low Prices” printed on the outside in a manner that the officers later described as “gingerly.” Neither officer knew petitioner or his companion. One of the two officers, Officer Thomas, exited the vehicle and, without identifying himself, asked petitioner to “‘come here a minute.’” 45 Ohio St. 3d 255, 256, 544 N. E. 2d 239, 240 (1989). Petitioner did not respond and kept walking. When Officer Thomas identified himself as a police officer, petitioner “threw the sack he was carrying onto the hood of [his] car and turned to face Thomas who was approaching.” Ibid. Officer Thomas asked petitioner what the bag contained; petitioner did not respond; Officer Thomas then rebuffed petitioner’s attempt to protect the bag, pushed petitioner’s hand away, and opened the bag. The drug paraphernalia discovered within provided probable cause for the arrest and evidence sufficient to support petitioner’s conviction for drug abuse.
No contention has been raised in this case that the officer’s reaching for the bag involved a self-protective action necessary for the officer’s safety. See Terry v. Ohio, 392 U. S. 1 (1968). Although the Fourth Amendment may permit a brief detention of property on the basis of only “reasonable, articulable suspicion” that it contains contraband or evidence of criminal activity, United States v. Place, 462 U. S. 696, 702 (1983), it proscribes — except in certain well-defined circumstances — the search of that property unless accomplished pursuant to judicial warrant issued upon probable cause. See, e. g., Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989); Mincey v. Arizona, 437 U. S. 385, 390 (1978); Katz v. United States, 389 U. S. 347, 357 (1967). That guarantee protects alike the “traveler who carries a toothbrush and a few articles of clothing in a paper bag” and “the sophisticated executive with the locked attaché case.” United States v. Ross, 456 U. S. 798, 822 (1982). The Ohio Supreme Court upheld the warrantless search of petitioner’s bag under the exception for searches incident to arrest. See United States v. Chadwick, 433 U. S. 1, 14-15 (1977); Chimel v. California, 395 U. S. 752, 763 (1969). The court stated that petitioner was not arrested until after the contraband was discovered in the search of the bag. 45 Ohio St. 3d, at 257, 258, 544 N. E. 2d, at 241, 242. It nonetheless held that the search was constitutional because its fruits justified the arrest that followed.
That reasoning, however, “justifying] the arrest by the search and at the same time . . . the search by the arrest,” just “will not do.” Johnson v. United States, 333 U. S. 10, 16-17 (1948). As we have had occasion in the past to observe, “[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sibron v. New York, 392 U. S. 40, 63 (1968); see also Henry v. United States, 361 U. S. 98, 102 (1959); Rawlings v. Kentucky, 448 U. S. 98, 111, n. 6 (1980). The exception for searches incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control. Contrary to the Ohio Supreme Court’s reasoning, it does not permit the police to search any citizen without a warrant or probable cause so long as an arrest immediately follows.
The State does not defend the reasoning of the Ohio Supreme Court, but rather contends that petitioner abandoned the bag when he threw it on his car and turned to face Officer Thomas. See Abel v. United States, 362 U. S. 217, 241 (1960); Hester v. United States, 265 U. S. 57, 58 (1924). That argument was unanimously rejected by the Ohio Supreme Court, 45 Ohio St. 3d, at 263, n. 6, 544 N. E. 2d, at 246, n. 6; id., at 266, 544 N. E. 2d, at 249 (Sweeney, J., dissenting); id., at 273-274, 544 N. E. 2d, at 255, n. 10 (Wright, J., dissenting), and we have no reason to disturb its conclusion. As the state court properly recognized, a citizen who attempts to protect his private property from inspection, after throwing it on a car to respond to a police officer’s inquiry, clearly has not abandoned that property. Cf. Rios v. United States, 364 U. S. 253, 262, n. 6 (1960).
The motion for leave to proceed informa pauperis and the petition for writ of certiorari are granted, and the judgment of the Supreme Court of Ohio is
Reversed.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer: |
songer_casetyp1_7-2 | C | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Paul T. BERNARD; Charles W. Pannhorst, Jr.; Keith D. Mutschler; and Arthur Aliperti, Plaintiffs-Appellants, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellee.
No. 87-4154.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 28, 1988.
Decided March 10, 1989.
Rankin M. Gibson (argued), Lucas, Pren-dergast, Albright, Gibson & Newman, Columbus, Ohio, for plaintiffs-appellants.
Thomas V. Williams, Porter, Wright, Morris & Arthur, Columbus, Ohio, Wayne A. Schrader (argued), Gibson, Dunn & Crutcher, Washington, D.C., for defendant-appellee.
Before KENNEDY, GUY and RYAN, Circuit Judges.
RYAN, Circuit Judge.
Plaintiffs-appellants appeal a district court order granting partial summary judgment dismissing several consolidated claims they brought against their former employer, Rockwell International Corporation (“Rockwell”). Appellants claimed that Rockwell 1) terminated their employment in breach of their employment contracts, 2) fraudulently induced them to enter into those contracts, and 3) owed them vacation pay. We conclude that the material facts considered by the district court in granting the defendant’s motion for summary judgment would not have allowed a jury reasonably to find for the plaintiffs on any of the foregoing claims. Accordingly, the district court’s order granting summary judgment is affirmed.
I.
Paul T. Bernard, Charles W. Pannhorst, Jr., Keith D. Mutschler, and Arthur Aliper-ti were formerly employed by Rockwell at its Columbus, Ohio facility. When they were hired from other companies, each was issued, and signed, a “Report for Work Notice and Employment Agreement.” That agreement provided, in pertinent part:
1. Employment Certification. I realize that it is my duty to perform my job faithfully and agree that my employment shall be in accordance with Com pany policies, rules and regulations, that may be posted or published at any time. I understand that changes in the type of work, hours, rates of pay, shifts, days off and total hours worked each day or week may be made at the discretion of the Company; and are not within the control of the Employment Section. I also realize that all employees except those reinstated are subject to a probationary period following hire. [Plaintiffs’ emphasis].
* * * * * *
5. Agreement Regarding Employment. It is agreed that the employment of the undersigned by Rockwell is at the will of either party and may be terminated on notice to the other as prescribed by applicable Rockwell procedures. Other arrangements, agreements or understandings, if any, regarding the period of the undersigned’s employment, except any letter agreement regarding relocation expenses, are hereby cancelled and superseded. [Defendant’s emphasis].
Each plaintiff later participated in an orientation session at which Rockwell gave each a copy of its Employee Handbook, a copy of the Plant Rules, and information concerning its Standard Operating Manual. In relevant part, the handbook provided:
Standards of Conduct
All organizations have guidelines of personal conduct to maintain and safeguard the interests of all members of the group.
The Company’s Plant Rule System provides for a standard of business conduct with rules that are designed to be both manageable and equitable. The administration of employee discipline is a management responsibility and your supervisor will apply these Company rules in a manner that is fair, consistent, and in accordance with the Company's discipline philosophy. This philosophy emphasizes progressive discipline, with the objective of being corrective rather than punitive. Under the Plant Rule System, discipline for rule violations is assessed in proportion to seriousness of the infraction. Repetitive violations bring stiffer penalties including disciplinary time off and/or possible discharge action. The system includes a method whereby good behavior reduces an employee’s previous discipline charges. Specific rule violations are documented by the issuance of either a Warning Notice or a Supervisor’s Personnel Memorandum.
The rules of personal conduct are posted throughout the Company’s premises or are available from your supervisor.
Attendance and Job Performance
The profitable operation of the company depends to a great extent on the regular attendance of our employees. A serious burden is placed on the supervisor in planning work operations and schedules when the supervisor has no assurance that the employees will regularly report to work and with disruptions caused by having to shift employees around to cover absentees. Therefore, attendance is an essential element of job performance and is an important factor in continuing your employment with the Company. All employees are required to report unplanned absences from work, including tardiness of absence for an entire work-shift. If you know you will be absent, make the necessary arrangement with your supervisor in advance. This will make planning easier and reduce the pressures on your fellow employees. If you do not know in advance, call your supervisor at the beginning of the work shift.
Ernest L. Sullivan, Manager of Employee Relations at the Columbus, Ohio facility stated in a sworn declaration that while Rockwell intended to follow these policies set out in the employee manuals, it did not intend the policies to modify the express contract provisions to which both parties had assented. Sullivan stated that Rockwell published the handbook several years before any of the plaintiffs began their employment with the company.
Plaintiffs-appellants also based their claims for pro rata vacation pay on the company policies. The Employee Handbook stated:
You are encouraged to take advantage of your earned vacation by taking time off from work. Vacations are of value to you and the company in terms of morale, health, and efficiency. You are eligible for 80 hours of vacation after completion of your first year of employment. This vacation is increased to 120 hours following the completion of 10 years of continuous service, and to 160 hours following the completion of 20 years of continuous service. Every attempt is made to accommodate company requirements and production schedules in the scheduling of vacations — the company may reschedule vacation time if your skills are needed on a critical operation. Vacations may be taken in various forms, either continuous, in partial weeks, or a day at a time, as long as it does not unduly disrupt the continuity of your work function. You are required to take the full amount of vacation within your current anniversary year unless, in special situations only, approval is granted to carry earned vacation hours beyond your anniversary date.
Rockwell asserted, however, that employees earn paid vacation, not pro rata, but “upon completion of each year.” Sullivan stated that according to the applicable provision of the company’s Standard Operating Manual, F-4.02.1, also available to the employees, “[vjacation benefits for partial years of service are not paid upon termination of employment on a pro rata basis if the employee is terminated for any reason other than inability to meet company medical standards or resigns other than to enter active service in the armed forces or retire under the provisions of a company retirement plan.”
Rockwell fired Aliperti, Mutschler, and Pannhorst on January 24, 1985 because they failed to attend a management status meeting on January 18, 1985. Bernard submitted a letter of resignation on January 17, 1985, intending it to take effect April, 1985. Rockwell, however, accelerated his termination date making it effective immediately. On March 12, 1985, the four men initiated a lawsuit in Ohio state court, each seeking in excess of $450,000, alleging wrongful discharge, breach of promise to pay overtime, failure to pay accrued vacation time, and misrepresentation by Rockwell. Rockwell properly removed the suit to federal court in April and answered the complaint in May. Approximately one year later, on March 31, 1986, Rockwell moved for summary judgment based upon the complaint, depositions, answers to interrogatories, employment contracts, and employee handbooks. On October 8, 1987, the trial court granted summary judgment on all claims except those for unpaid overtime. The plaintiffs dismissed their claims for overtime pay in order to appeal the granting of summary judgment with respect to their other claims.
II.
Employment at-will
Each plaintiff, at time of hire, signed a written “Employment Agreement” which expressly provided that it was “agreed that the employment of the undersigned by Rockwell is at the will of either party and may be terminated on notice to the other as prescribed by Rockwell procedures.” Absent a statutory restriction, Ohio law recognizes no exceptions to the rule that an employment contract terminable at will may be terminated at any time, for any reason, or for no reason. See Peterson v. Scott Constr. Co., 5 Ohio App.3d 203, 205, 451 N.E.2d 1236 (1982), and cases cited therein. It is difficult to imagine how the plaintiffs and Rockwell could have stated any more clearly that their agreement was for a contract of employment terminable at will, and plaintiffs offered no evidence to indicate that they did not understand the terms of their express contract. Rather, they urge that an implied-in-fact contract should prevail over the express “at-will” employment contract.
Ohio law and an increasing number of jurisdictions have indicated that in employment-at-will cases:
[T]he employer’s promulgation of employment manuals or employer handbooks, or other writings styled “personnel policies and practices,” can create contractual rights which the employer may not abridge without incurring liability.
When such oral or written modifications of the original employment contract satisfy the paradigm elements essential to contract formation — ie., offer, acceptance, consideration — binding obligations arise.
Helle v. Landmark, Inc., 15 Ohio App.3d 1, 8, 472 N.E.2d 765 (1984) (citations omitted).
But, the specific issue in Helle was not the ability to terminate at-will, but the existence of a severance pay policy. That court found that through both conversation and a written policy the employer had stated to employees that they should not quit the troubled company because they would be eligible for substantial severance pay if they remained longer. Based on these representations the plaintiffs stayed with the company, thereby binding it to a new contract. That case did not involve the ability to terminate.
Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), is Michigan law and therefore not binding in this Ohio case. But plaintiffs argued Toussaint and Helle relied on its reasoning, so we address it. Whatever can be said for Toussaint as the doctrinal progenitor of today’s burgeoning volume of employment rights litigation in this circuit, it is clear that it did not involve, as this case does, an express written employment contract; rather, in that case, Blue Cross and Blue Shield of Michigan hired Mr. Toussaint in an oral agreement for an indefinite duration. Michigan law would normally have interpreted this as an employment at-will situation. But a company officer indicated through oral representations at the time of hiring that the employees would not be fired if they were performing satisfactorily. In addition, a supervisor’s manual, which was given to Mr. Toussáint at the time of hiring, indicated that company policy was “to treat employees leaving Blue Cross in a fair and consistent manner and to release employees for just cause only.” 408 Mich, at 617, 292 N.W.2d 880. Based on those representations and finding no inconsistent representations Toussaint concluded that a jury could reasonably have found that employment only terminable for cause. But Tous-saint does not indicate that employers are always contractually bound by employee manuals. For example, if employers seek to defeat claims by employees that an at-will employment relationship evolved into one terminable only for cause, they may “requir[e] prospective employees to acknowledge that they serve[] at the will or pleasure of the company____” 408 Mich. at 612, 292 N.W.2d 880.
Requiring such acknowledgement is exactly what Rockwell did in this case. The express employment at-will language of paragraph 5 of its contract, entitled “Agreement Regarding Employment,” distinguishes this case from those appellant cites. Moreover, the language in paragraph 1 of the “Report for Work Notice and Employment Agreement” that appellants emphasize in support of their argument that the contract incorporated all Rockwell policies, rules, and regulations does not purport to bind Rockwell to those policies, only the employee. In all events, a jury could not reasonably have concluded that the parties intended a three-year-old handbook of company policies and goals to modify an express provision of a written employment contract signed by the parties, indicating that employment was at-will. In Reid v. Sears, Roebuck & Co., 790 F.2d 453 (6th Cir.1986), this court, applying common law principles, concluded that Michigan courts would not imply a contract that would directly conflict with an express contract absent a showing that the parties intended contractual modification. More recently, in Nora v. Carrier Corp., 861 F.2d 457 (6th Cir.1988), this court affirmed summary judgment that permitted at-will discharge pursuant to the express terms of an employment agreement despite allegations that “ ‘the statements contained in Defendant’s policy, procedures, standard practice, appraisals, and past history of operation create[d] express contracts of employment.’ ” Id. at 459. Appellants cited authorities do not indicate that on these very similar facts Ohio courts would rule differently.
Pro rata vacation pay
The provision upon which plaintiffs rely for their claim that Rockwell owes them pro rata vacation pay indicates that eligibility exists “after completion” of one year of employment. In other words, no one is entitled to a paid vacation during the first year of employment but is entitled, during the second year, to take the 80 hours they previously accrued. Upon starting a third year employees would be entitled to the 80 hours accrued as a result of successful completion of their second year. The evidence before the district court indicated that Rockwell always interpreted its policy in that fashion. Because the policy is not ambiguous and was not rendered ambiguous by the company’s consistent interpretation, plaintiffs cannot now claim that, having failed to complete their second year, they are entitled to vacation pay pro rata.
Misrepresentation, Promissory Estoppel
Klott v. Associates Real Estate, 41 Ohio App.2d 118, 120-21, 322 N.E.2d 690, 692 (1974), indicates that in Ohio recovery for fraud requires:
actual or implied representations or concealment of a matter of fact which relates to the present or past, and which is material to the transaction, made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; with the intent of misleading another into relying upon it; and reliance upon it by the other person with a right to so rely; with resulting injury as the consequence of such reliance.
In this case, the district judge found that:
The plaintiffs have not produced any evidence showing that Rockwell intended to mislead them. Additionally, it is undisputed that plaintiffs did not learn of the vacation and discipline policies until they received their employee handbooks, which was after they arrived in Ohio. Therefore, they could not have relied on these representations on deciding to move to the Columbus area. Since plaintiffs have failed to produce evidence in support of these essential elements of their claim, defendant is entitled to summary judgment on these counts.
These findings were not disputed. They indicate that the plaintiffs’ fraud claims are legally insufficient.
On appeal, although not in their complaint, appellants raise the issue of promissory estoppel. They cite Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985), apparently for the proposition that under an estoppel theory it matters not that the employees learned of the policies after they agreed to employment. That would be a novel estoppel theory indeed; unfortunately Mers is nothing but a traditional estoppel case. Promissory estoppel theory requires detrimental reliance. Mers, 483 N.E.2d at 154; 1 Restatement of Contracts 2d, § 90. Appellants’ offer no evidence that they forewent other employment opportunities or anything else after learning of the “promises” they allege Rockwell made through its Benefits Handbook. Certainly Rockwell gained their services, but services for which it previously contracted with them, and for which it compensated them. Con-cededly, each of the plaintiffs left another job to go to Rockwell, but none of them left a job based on the alleged misrepresentations made in the Employee Handbook, because they discovered the handbook only after leaving their prior jobs, agreeing to Rockwell’s employment contract, and moving to Columbus, Ohio.
AFFIRMED.
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: |
sc_lcdisposition | C | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
ALABAMA v. WHITE
No. 89-789.
Argued April 17, 1990
Decided June 11, 1990
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 333.
Joseph G. L. Marston III, Assistant Attorney General of Alabama, argued the cause for petitioner. With him on the briefs were Don Siegelman, Attorney General, and Stacy S. Houston, Rosa Hamlett Davis, and Andrew J. Segal, Assistant Attorneys General.
David B. Byrne, Jr., by appointment of the Court, 493 U. S. 1054, argued the cause and filed a brief for respondent.
Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Steven R. Shapiro and David I. Schoen; and for Americans for Effective Law Enforcement, Inc., et al. by Gregory U. Evans, Daniel B. Hales, Joseph A. Morris, George D. Webster, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, William K. Lambie, and James P. Manak.
Justice White
delivered the opinion of the Court.
Based on an anonymous telephone tip, police stopped respondent’s vehicle. A consensual search of the car revealed drugs. The issue is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. We hold that it did.
On April 22, 1987, at approximately 3 p.m., Corporal B. H. Davis of the Montgomery Police Department received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case. Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers observed respondent leave the 235 building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle as it drove the most direct route to Dobey’s Motel. When the vehicle reached the Mobile Highway, on which Dobey’s Motel is located, Corporal Reynolds requested a patrol unit to stop the vehicle. The vehicle was stopped at approximately 4:18 p.m., just short of Dobey’s Motel. Corporal Davis asked respondent to step to the rear of her car, where he informed her that she had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they could look for cocaine, and respondent said they could look. The officers found a locked brown attaché case in the car, and, upon request, respondent provided the combination to the lock. The officers found marijuana in the attaché case and placed respondent under arrest. During processing at the station, the officers found three milligrams of cocaine in respondent’s purse.
Respondent was charged in Montgomery County Court with possession of marijuana and possession of cocaine. The trial court denied respondent’s motion to suppress, and she pleaded guilty to the charges, reserving the right to appeal the denial of her suppression motion. The Court of Criminal Appeals of Alabama held that the officers did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U. S. 1 (1968), to justify the investigatory stop of respondent’s car, and that the marijuana and cocaine were fruits of respondent’s unconstitutional detention. The court concluded that respondent’s motion to dismiss should have been granted and reversed her conviction. 550 So. 2d 1074 (1989). The Supreme Court of Alabama denied the State’s petition for writ of certiorari, two justices dissenting. 550 So. 2d 1081 (1989). Because of differing views in the state and federal courts over whether an anonymous tip may furnish reasonable suspicion for a stop, we granted the State’s petition for certiorari, 493 U. S. 1042 (1990). We now reverse.
Adams v. Williams, 407 U. S. 143 (1972), sustained a Terry stop and frisk undertaken on the basis of a tip given in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient “indicia of reliability” to justify a forcible stop. 407 U. S., at 147. We did not address the issue of anonymous tips in Adams, except to say that “[t]his is a stronger case than obtains in the case of an anonymous telephone tip,” id., at 146.
Illinois v. Gates, 462 U. S. 213 (1983), dealt with an anonymous tip in the probable-cause context. The Court there abandoned the “two-pronged test” of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), in favor of a “totality of the circumstances” approach to determining whether an informant’s tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli—an informant’s “veracity,” “reliability,” and “basis of knowledge”—remain “highly relevant in determining the value of his report.” 462 U. S., at 230. These factors are also relevant in the reasonable-suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.
The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is “by hypothesis largely unknown, and unknowable.” Id., at 237. This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: “[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller’s] predictions regarding [Vanessa White’s] criminal activities.” 462 U. S., at 227. By requiring “[s]omething more,” as Gates did, ibid., we merely apply what we said in Adams: “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized,” 407 U. S., at 147. Simply put, a tip such as this one, standing alone, would not “‘warrant a man of reasonable caution in the belief’ that [a stop] was appropriate.” Terry, supra, at 22, quoting Carroll v. United States, 267 U. S. 132, 162 (1925).
As there was in Gates, however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in Gates, but the required degree of suspicion was likewise not as high. We discussed the difference in the two standards last Term in United States v. Sokolow, 490 U. S. 1, 7 (1989):
“The officer [making a Terry stop]. . . must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.”’ [Terry, 392 U. S.,] at 27. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U. S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ [Gates, 462 U. S., at 238], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.”
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U. S., at 147. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” United States v. Cortez, 449 U. S. 411, 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality-of-the-circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable-suspicion context, the only difference being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment.
It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, id., at 5-6. Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent’s departure from the building was within the timeframe predicted by the caller. As for the caller’s prediction of respondent’s destination, it is true that the officers stopped her just short of Dobey’s Motel and did not know whether she would have pulled in or continued past it. But given that the 4-mile route driven by respondent was the most direct route possible to Dobey’s Motel, 550 So. 2d, at 1075, Tr. of Oral Arg. 24, but nevertheless involved several turns, App. 7, Tr. of Oral Arg. 24, we think respondent’s destination was significantly corroborated.
The Court’s opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. 462 U. S., at 244. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.
We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Id., at 245. The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. See ibid. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama and remand the case for further proceedings not inconsistent with this opinion.
So ordered.
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: |
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LUJAN, SECRETARY OF THE INTERIOR, et al. v. NATIONAL WILDLIFE FEDERATION et al.
No. 89-640.
Argued April 16, 1990
Decided June 27, 1990
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’ConnoR, and Kennedy, JJ., joined. Blackmun, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and Stevens, JJ., joined, post, p. 900.
Acting Solicitor General Roberts argued the cause for petitioners. With him on the briefs were Assistant Attorney General Stewart, Deputy Solicitor General Wallace, Lawrence S. Robbins, Peter R. Steenland, Jr., Anne S. Almy, Fred R. Disheroon, and Vicki L. Plant.
E. Barrett Prettyman, Jr., argued the cause for respondents. With him on the brief were John C. Keeney, Jr., Kathleen C. Zimmerman, and Norman L. Dean, Jr. William Perry Pendley filed a brief for respondents Mountain States Legal Foundation et al.
Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Kathryn A. Oberly and John J. Rade-macher; for the American Mining Congress by Jerry L. Haggard and Gerrie Apker Kurtz; for the National Cattlemen’s Association et al. by Constance E. Brooks; for the Pacific Legal Foundation by Ronald A. Zum-brun, Robin L. Rivett, and James S. Burling; and for the Washington Legal Foundation et al. by Terence P. Ross, Daniel J. Popeo, and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Craig C. Thompson, Susan L. Durbin, Clifford L. Rechtschaffen, and Nilda M. Mesa, Deputy Attorney Generals, and for the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Jeffrey L. Amestoy of Vermont, and Joseph B. Meyer of Wyoming; and for the Wilderness Society et al. by Bmce J. Ennis, Jr.
Justice Scalia
delivered the opinion of the Court.
In this case we must decide whether respondent, the National Wildlife Federation (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands.
H — (
Respondent filed this action in 1985 in the United States District Court for the District of Columbia against petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U. S. C. §706, in the course of administering what the complaint called the “land withdrawal review program” of the BLM. Some background information concerning that program is necessary to an understanding of this dispute.
In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e. g., Rev. Stat. §2319, 30 U. S. C. §22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U. S. C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U. S. C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President “at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the public lands of the United States... and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes... Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U. S. C. §315f, which gave the Secretary of the Interior authority to “classify” public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec. Order No. 6910, Nov. 26, 1934; Exec. Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior “to examine and classify any lands” withdrawn by these orders and by other authority as “more valuable or suitable” for other uses “and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws.” 49 Stat. 1976, 43 U. S. C. §315f (1982 ed.). The amendment also directed that “[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry.” Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U. S. C. §§1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government.
Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission,. established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that “virtually all” of the country’s public domain, see Public Land Law Review Commission, One Third of the Nation’s Land 52 (1970) — about one-third of the land within the United States, see id., at 19 — had been withdrawn or classified for retention; that it was difficult to determine “the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other,” id., at 52; and that there were inadequate records to show the purposes of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that “Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964.” Ibid.
In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U. S. C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to “prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values,” § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could “modify or terminate any such classification consistent with such land use plans.” § 1712(d). It also authorized the Secretary to “make, modify, extend or revoke” withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714 (0( 1), and to “determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs,” § 1714(0(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent’s amended complaint styles the BLM’s “land withdrawal review program,” which is the subject of the current litigation.
Pursuant to the directives of the FLPMA, petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(0 with respect to withdrawals in 11 Western States. The law requires the Secretary to “report his recommendations to the President, together with statements of concurrence or non-concurrence submitted by the heads of the departments or agencies which administer the lands”; the President must in turn submit this report to the Congress, together with his recommendation “for action by the Secretary, or for legislation.” § 1714(0(2). The Secretary has submitted a number of reports to the President in accordance with this provision.
Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the “ordinary course of business.” U. S. Dept, of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: An agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record-clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U. S. C. § 1701(a)(7) (1982 ed.). App. 142-145.
Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple use management, 43 CFR pt. 2420 (1988), for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated by the Secretary prescribe the procedures to be followed in the case of each type of classification determination.
HH I — I
In its complaint, respondent averred generally that the reclassification of some withdrawn lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation’s public lands, had violated the FLPMA by failing to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands,” 43 U. S. C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 Western States to the President, § 1714(Z); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to “include in every recommendation or report on... major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on... the environmental impact of the proposed action.” 42 U. S. C. §4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and should therefore be set aside pursuant to § 10(e) of the APA, 5 U. S. C. §706. Appended to the amended complaint was a schedule of specific land-status determinations, which the complaint stated had been “taken by defendants since January 1, 1981”; each was identified by a listing in the Federal Register.
In December 1985, the District Court granted respondent’s motion for a preliminary injunction prohibiting petitioners from “[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection of lands in the public domain that was in effect on January 1, 1981,” and from “[tjaking any action inconsistent” with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners’ motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners’ actions under the APA, 5 U. S. C. §702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U. S. App. D. C. 241, 835 F. 2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent’s members used environmental resources that would be damaged by petitioners’ actions. See id., at 248, 835 F. 2d, at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land-status actions that respondent sought to challenge — since at least some of the actions complained of were listed in the complaint’s appendix of Federal Register references — and asserted harm to respondent’s members attributable to those particular actions. Id., at 249, 835 F. 2d, at 313. To support the latter point, the Court of Appeals pointed to the affidavits of two of respondent’s members, Peggy Kay Peterson and Richard Erman, which claimed use of land “in the vicinity” of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was “concrete indication that [respondent’s] members use specific lands covered by the agency’s Program and will be adversely affected by the agency’s actions,” and the complaint was “sufficiently specific for purposes of a motion to dismiss.” Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss and directed the parties and the District Court “to proceed with this litigation with dispatch.” National Wildlife Federation v. Burford, 269 U. S. App. D. C. 271, 272, 844 F. 2d 889, 890 (1988).
Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners’ actions under the APA. After argument on this motion, and in purported response to the court’s postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction, and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals’ affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent’s attempted APA challenge to “each of the 1250 or so individual classification terminations and withdrawal revocations” effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F. Supp. 327, 332 (DC 1988).
This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U. S. App. D. C. 320, 878 F. 2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves and held that it was an abuse of discretion not to consider the four additional affidavits as well. The Court of Appeals also concluded that standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U. S. 1042 (1990).
hH
A
We first address respondent’s claim that the Peterson and Erman affidavits alone suffice to establish respondent’s right to judicial review of petitioners’ actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U. S. C. §702.
This provision contains two separate requirements. First, the person claiming a right to sue must identify some “agency action” that affects him in the specified fashion; it is judicial review “thereof” to which he is entitled. The meaning of “agency action” for purposes of § 702 is set forth in 5 U. S. C. §551(13), see 5 U. S. C. § 701(b)(2) (“For the purpose of this chapter... ‘agency action’ ha[s] the meanin[g] given... by section 551 of this title”), which defines the term as “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act,” 5 U. S. C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the “agency action” in question must be “final agency action.” See 5 U. S. C. §704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review” (emphasis added).
Second, the party seeking review under § 702 must show that he has “suffered] legal wrong” because of the challenged agency action, or is “adversely affected or aggrieved” by that action “within the meaning of a relevant statute.” Respondent does not assert that it has suffered “legal wrong,” so we need only discuss the meaning of “adversely affected or aggrieved... within the meaning of a relevant statute.” As an original matter, it might be thought that one cannot be “adversely affected or aggrieved within the meaning” of a statute unless the statute in question uses those terms (or terms like them) — as some pre-APA statutes in fact did when conferring rights of judicial review. See, e. g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U. S. C. §402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of pre-existing law. Rather, we have said that to be “adversely affected or aggrieved... within the meaning” of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the “zone of interests” sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U. S. 388, 396-397 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring “on the record” hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be “adversely affected within the meaning” of the statute.
B
Because this case comes to us on petitioners’ motion for summary judgment, we must assess the record under the standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule- 56(c) states that a party is entitled to summary judgment in his favor “if the pleadings/depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e) further provides:
“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.”
As we stated in Celotex Corp. v. Catrett, 477 U. S. 317 (1986), “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id., at 322. Where no such showing is made, “[t]he moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id., at 323.
These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” The burden is on the party seeking review under § 702 to set forth specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. Sierra Club v. Morton, 405 U. S. 727, 740 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party’s case; to the contrary, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” 477 U. S., at 323.
C
We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised a genuine issue of fact as to whether an “agency action” taken by petitioners caused respondent to be “adversely affected or aggrieved... within the meaning of a relevant statute.” We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits — “recreational use and aesthetic enjoyment” — are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333 (1977).
As for the “agency action” requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular “agency action” as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed. Reg. 19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e. g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at 47 Fed. Reg. 7232-7233 (1982), an order captioned Public Land Order 6156 and dated February 18, 1982.
We also think that whatever “adverse effect” or “aggrievement” is established by the affidavits was “within the meaning of the relevant statute” —?:, e., met the “zone of interests” test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint — both the FLPMA and NEPA. We have no doubt that “recreational use and aesthetic enjoyment” are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected.
The Peterson affidavit averred:
“My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass-Green Mountain, Wyoming have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass-Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands.” App. to Pet. for Cert. 191a.
Erman’s affidavit was substantially the same as Peterson’s, with respect to all except the area involved; he claimed use of land “in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kaibab National Forest.” Id., at 187a.
The District Court found the Peterson affidavit inadequate for the following reasons:
“Peterson... claims that she uses federal lands in the vicinity of the South Pass-Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment and that her recreational and aesthetic enjoyment has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing.... This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining.... There is no showing that Peterson’s recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands ‘in the vicinity.’ The affidavit on its face contains only a bare allegation of injury, and fails to show specific facts supporting the affiant’s allegation.” 699 F. Supp., at 331 (emphasis in original).
The District Court found the Erman affidavit “similarly flawed.”
“The magnitude of Erman’s claimed injury stretches the imagination.... [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one-eighth the size oif the State of Arizona. Furthermore, virtually the entire Strip is and for many years has been open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non-metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for non-metalliferous mining.” Id,., at 332.
The Court of Appeals disagreed with the District Court’s assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason:
“If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious.... [T]he trial court overlooks the fact that unless Peterson’s language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document.
“At a minimum, Peterson’s affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party.... This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres.” 278 U. S. App. D. C., at 329, 878 F. 2d, at 431.
That is not the law. In ruling upon a Rule 56 motion, “a District Court must resolve any factual issues of controversy in favor of the non-moving party” only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from “assuming” that general averments embrace the “specific facts” needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment “shall be entered” against the nonmoving party unless affidavits or other evidence “set forth specific facts showing that there is a genuine issue for trial.” The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 249 (1986) (“[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without ‘any significant probative evidence tending to support the complaint’”), quoting First National Bank of Ariz. v. Cities Service Co., 391 U. S. 253, 290 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side’s case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.
At the margins there is some room for debate as to how “specific” must be the “specific facts” that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the §702 challenge here — whether one of respondent’s members has been, or is threatened to be, “adversely affected or aggrieved” by Government action — Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent’s members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to “presume” the missing facts because without them the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff’s complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is).
Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U. S. 41, 45-46 (1957).
IV
We turn next to the Court of Appeals’ alternative holding that the four additional member affidavits proffered by respondent in response to the District Court’s briefing order established its right to § 702 review of agency action.
A
It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners’ so-called “land withdrawal review program.” That is not an “agency action” within the meaning of §702, much less a “final agency action” within the meaning of §704. The term “land withdrawal review program” (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable “agency action” — much less a “final agency action” — than a “weapons procurement program” of the Department of Defense or a “drug interdiction program” of the Drug Enforcement Administration. As the District Court explained, the “land withdrawal review program” extends to, currently at least, “1250 or so individual classification terminations and withdrawal revocations.” 699 F. Supp., at 332.
Respondent alleges that violation of the law is rampant within this program — failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular “agency action” that causes it harm. Some statutes permit broad regulations to serve as the “agency action,” and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action “ripe” for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer: |
songer_appel1_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 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.
OREGON-WASHINGTON BRIDGE CO. v. THE LEW RUSSELL, Sr. et al.
No. 13051.
United States Court of Appeals Ninth Circuit.
May 6, 1952.
Gray & Lister and H. Lawrence Lister, Portland, Or., for appellant.
Wood, Matthiessen & Wood, Erskine Wood and Lofton L. Tatum, Portland, Or., for appellees, The Lew Russell, Sr. and her owner, Russell Towboat & Moorage Co.
Thomas J. White, and William F. White, Portland, Or., for appellees, Crane Barge Ño. 25, and her owner, Russell Family, Inc.
Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.
DENMAN, Chief Judge.
This appeal is taken by the libelant, Oregon-Washington Bridge Company, from a decree in admiralty that its libel against the respondents, Russell Towboat and Moorage Company and Russell Family, Inc., be dismissed and that the respondent, Russell Family, Inc., which had filed an intervening libel, recover from the libelant the sum of $3,306.11 for injury to a crane belonging to Russell Family, Inc. The libelant is owner of a bridge crossing the Columbia River at Hood River, Oregon; the respondent Russell Towboat and Moor-age Company is claimant of the tug, “Lew Russell, Sr.”; and the respondent Russell Family, Inc. is claimant of Crane Barge No: 25 and intervening libelant against the Bridge Company. The appellant contends that the district court erred in holding that libelant’s negligence was the cause of the damage resulting from the collision of the tug and barge with the bridge, and that the respondents were not negligent.
The Hood River bridge was opened in 1924. It had no lift span originally, but when Bonneville Dam was built a few miles downstream, the level of the Columbia River was raised to such an extent that it became necessary to have a lift span. Such was built in 1940 under the direction of the War Department and at federal expense. At the center of this span was a light which turned red when the span started to lift and which- turned green when the span readied its maximum height. An air whistle operated by electric motor was also installed on the bridge. The bridge tender’s house was just north of the lift span and about 25 feet above the roadway.
Regulations of the War Department required twelve hours’ notice to the bridge tender from any river craft which could not pass under the bridge at its normal position. The call for the opening of the span when the craft was in position to pass was one long, two short and one long blast. The twelve hours’ notice for an 8:30 A. M. passage was given by the tug; but the tug did not arrive at the appointed hour. Three hours later, the bridge tender spotted it moving upstream, called an electrician to stand by, and proceeded to raise the span without a signal from the tug.
When the span had risen 13% feet from the roadway, the electric power supplied by a Public Utility District failed through no fault of the bridge. The air whistle supplied from this same source of electric energy also failed as did the red light at the center of the span. The bridge tender rushed out of his control tower 25 feet above the roadway and shouted and waved to the tug which by this time had begun to approach the bridge on the assumption that the lift span had been raised to the correct height by the tender. The warning was not observed by the pilot of the tug.
As the tug approached the bridge, it was pushing a gravel barge directly ahead of it and Crane Barge No. 25 forward and starboard of the tug. The crane barge was 200 feet long and it was carrying a crane welded to its deck about 50 feet from the stern. A boom 110 feet long extended upward and forward from the crane and it was loaded with a small L.C.M. When the tip of the boom was about 25 feet from the bridge, the pilot realized that it was about 3 feet short of clearance under the lift span. He reversed his engine, too late to prevent the impact, and it is alleged that the bridge was damaged to the extent of some $30,000.
The district court held that the bridge was negligent in not maintaining an emergency or auxiliary signaling device which would operate independently of the power source which supplied the lift span itself. We agree with the court’s conclusion. The bridge is required to exercise due care under the circumstances; and it is undisputed that the electric power supply to the bridge had failed at least twice in the preceding one and one-half years. The district court found that it had failed at least three times previously. With this experience in mind, a prudent bridge owner would have realized that his signaling whistle would fail if power to the lift span failed and would have taken steps to secure an auxiliary device.
The libelant makes several attacks on this conclusion that the standard of due care required an auxiliary signal. The first is that there is no proof that a whistle would have been heard if one were available. This is the same kind of problem that faced the court in The T. J. Hooper, 2 Cir., 60 F.2d 737, where Judge Learned Hand held that ocean-going tugs would have to be ■equipped with wireless receiving sets in order to discharge their duty of seaworthiness. It was guesswork to some extent for him to say that if tire tugs in that case had carried wireless, the damage caused by storm could have been averted. The wireless might have failed, as • indeed private radio receiving sets aboard the tugs 'had, or the tug masters might not have believed weather warnings received on the wireless. ■In our case, it was shown that other bridges crossing the Willamette River had auxiliary warning devices which were commonly used. Since it was also testified that the tug could have stopped in one-half the length of its tow, or about 100 feet, a warning whistle at rather short quarters would have turned the trick. In any event, there is no reason to suppose that the district court specifically required a whistle as the auxiliary warning. It did not say so; and the regulations of the War Department applied to this bridge subsequent to the accident have specified a red flag as the auxiliary warning device, rather than a whistle.
No provision was made in the regulations by the War Department for auxiliary warning devices at the time of the collision. Complete fulfillment of these regulations by the bridge operator does not meet the standard of care in this case, however. The regulations of the War Department do not purport to set the ultimate standard of care in civil actions; and in the absence of a preemption of this function by the department, the courts must determine the standard of care in this civil action. The emphasis of the regulations is upon the action of the bridge operator in preventing the bridge from being an obstruction to navigation.
The lift span was seldom required to be raised for the passage of river craft and the libelant argues that the possibility of a power failure during the raising of the lift span was remote. This is true as a matter of probability; but it cannot be gainsaid that such an occurrence was shown to be a foreseeable event because of the past experience with power failures on this particular bridge. Sine© a slight act on the part of the bridge operator was necessary to prepare for this forseeable although improbable happening, the bridge operator was negligent in not doing that act.
The libelant argues that neglect of the tug and barge also contributed to the damage because the tug (1) should not have proceeded after the lift span stopped on the assumption that it was high enough, but should have awaited -the bridge’s affirmative signal to proceed, and (2) should -have had a lookout other than the pilot.
The tug did not give the signal to open which was prescribed by the regulations, but this was immaterial here since the lift span was raised without a signal. Having observed the raising of the lift span and its stopping, the tug pilot was entitled to assume that the bridge was ready for the tug’s passage, in the absence of any circumstances to warn him of the danger. The Louise Rugge, 3 Cir., 234 F. 768; The Kard, 3 Cir., 38 F.2d 844, 848. This is like the case where a tug has given a signal to open and may then assume in the absence of a warning to the contrary that the draw bridge will be timely opened. Clement v. Metropolitan West Side El. R. Co., 7 Cir., 123 F. 271. The rule is not changed here because the bridge was in the custom of giving a blast to proceed. The testimony on the existence of this custom on the part of the bridge is in the record; but in any event there is no evidence that the custom was communicated to the Columbia River craft and indeed there is testimony by the libelant’s witness that he had no knowledge of any notice of the custom being given to the Columbia River craft. Consequently, the tug was not required to wait for an affirmative signal to proceed.
The captain of the tug was standing alongside and 7 feet below the pilot watching the approach to the bridge. The appellant charges negligence in failing to have a lookout at the bow of the barge carrying the uplifted crane. If a lookout at the bow could have observed the danger sooner than the pilot and the tug’s captain, then the tug would probably be at fault. As the Supreme Court said in British Columbia v. Mylroie, 259 U.S. 1, 7, 42 S.Ct. 430, 432, 66 L.Ed. 807, “The duty of'the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend.” That case also involved the striking of a fixed thing, land, and is more apposite to our case than other cases cited to us which deal with navigation on the open sea or collision between moving vessels. In the Mylroie case, the tug was proceeding through foul weather and off its course without a lookout, and it is clear that a lookout in the bow would have sighted land sooner than the pilot whose vision was obscured by a dirty coal smoke. Furthermore, the vessel was apprised of danger and knew that it was faced with an emergency situation.
In our case, we have no caution bom of danger brought home to the crew of the tug. Their approach to this bridge was like dozens of others previously made. The pilot was in the pilot house in the bow of the tug about 25 feet above the level of the water. Directly ahead of the tug was a loaded gravel barge and to the starboard and forward of the tug was Crane Barge 25. The total length of the tug and tow was about 265 feet. The pilot of the tug testified that to bring them to- a dead stop, it required half the length of the tow. The end of the crane was 3 feet above the lower side of the lift and a few feet ahead of and 70 feet above the bow of the barge. A lookout could not have determined the 3-foot difference until just before the moment of impact, certainly not until nearly the end of the 100 feet of stopping distance. A lookout would not have improved the situation. The Catalina, D.C.S.D.Cal., 18 F.Supp. 461; cf. The Blue Jacket v. Tacoma Mill Co., 144 U.S. 371, 12 S.Ct. 711, 36 L.Ed. 469; The Nacoochee, 137 U.S. 330, 11 S.Ct. 122, 34 L.Ed. 687.
The decree is affirmed.
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_casetyp1_7-3-5 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
UNITED STATES v. SMITH.
No. 6484.
Circuit Court of Appeals, Ninth Circuit.
Jan. 18, 1932.
Rehearing Denied Feb. 23, 1932.
Anthony Savage, U. S. Atty., and Cameron Sherwood, Asst. U. S. Atty., both of Seattle, Wash. (William Wolff Smith, Sp. Counsel, and Bayless L. Guffy, Atty. Veterans’ Administration, both of Washington, D. C., and Lester E. Pope, Atty. Veterans’ Administration, of Seattle, Wash., of counsel), for the United States.
Graham K. Betts, of Seattle, Wash., for appellee.
Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.
WILBUR, Circuit Judge.
This is an appeal from a judgment against the government on a war risk insurance policy for $10,000 predicated upon the allegation and proof that the insured was totally and permanently disabled from the date of his discharge, which was during the life of the policy.
The evidence shows that the insured enlisted in the Army in July, 1918, and that he was honorably discharged November 20, 1918, the record of his discharge stating that he was suffering from a nervous disease. Shortly after his enlistment he was given the usual typhus inoculation, and following such inoculation, insured was confined to the hospital where he received a spinal puncture, and remained in the hospital until his discharge. The medical history of the insured shows that he was treated for syphilis soon after his enlistment, and the medical testimony introduced at the trial shows that he was suffering from paresis. .One of the medical experts, Dr. Royal B. Tracy, testified that in his opinion appellee was suffering from general paresis at time of his discharge.
- After his discharge, the evidence shows, he was nervous, that he mumbled in his speech and could not hold a conversation, that he had lost weight, that he tried to drive a truck for his brother but was not able to do the work. He was employed by the Great Northern Railway Company as a switchman in November, 1918, the job he had held before his enlistment, and worked ■ there until November, 1920, not always full time, but the greater part of the time, receiving the same wages as other men who were doing the same work. However, the witnesses who had worked with him testified that he made many mistakes, some very serious ones; that he was unreliable and aeted like a man who was demented. These co-workers testified that they overlooked his mistakes, relieved him from some of his work, and carried him along because he belonged to the Union, and never made any eomplaint to the officers of the company, because they did not want him to lose his position. In short, that he was not able to do the work.
He was committed to Steilaeoom Hospital for the feeble-minded in July, 1921, where he remained until his death on September 30, ,1921.
In plaintiff’s amended complaint there are two causes of action set forth, the first, based upon allegations that the insured was totally and permanently disabled from the date of his discharge and during the period the policy was effective from payment of monthly premiums. The second cause of action is based upon allegations that the Medical Board of Review and Board of Appeals of the United States Veterans’ Bureau had made a compensation rating in favor of the deceased from a date prior to the lapse of his policy, to wit, from the date of his discharge, which rating was sufficient to pay premiums on his policy to and including the date of his recognized total and permanent disability to wit, July 27, 1921, which compensation was due and uncollected on said date. That, by reason of the foregoing, the said policy of insurance sued upon did not lapse, but was kept in full force and effect until the date of recognized total and permanent disability and thereafter until the date of his death, to wit, September 30, 1921, by reason of and under the terms of section 305 of the World War Veterans’ Act as amended (38 USCA § 516). The District Court having found for the plaintiff on the first cause of action, it was unnecessary to consider the second cause of action set out in the eomplaint, and it was accordingly disregarded. It will be considered here only in disposing of appellant’s first assignment of error, which is that the lower court erred in overruling its objection to the introduction of bureau ratings, on the ground that they were immaterial.' This evidence was clearly admissible in proof of the second cause of action set forth in the complaint and, even though mot competent to show total and permanent disability, it was not error to admit such bureau ratings. Silberschein v. U. S., 266 U. S. 221, 45 S. Ct. 69, 69 L. Ed. 256; Armstrong v. United States (C. C. A.) 16 F.(2d) 387; Maddox v. United States (C. C. A.) 16 F.(2d) 390.
The second assignment of error is that the court erred in overruling appellant’s objection to the introduction of bureau reports of physical examinations of plaintiff on the ground that they were not properly identified, and on the further ground that the government had no opportunity to cross-examine the physicians who made the reports. The first ground of objection, namely, that the reports were not properly identified, is not open to the appellant here because not urged in the court below. Noonan v. Caledonia Min. Co., 121 U. S. 393, 400, 7 S. Ct. 911, 30 L. Ed. 1061. The other ground of objection to the bureau reports is without merit, as it has been held in numerous eases that reports of physical examinations made by the Veterans’ Bureau may be admitted in evidence, in war risk insurance cases. Runkle v. U. S. (C. C. A.) 42 F.(2d) 804; United States v. Cole (C. C. A.) 45 F.(2d) 339; United States v. Stamey et al, 48 F.(2d) 150 (C. C. A. 9). The ground of objection urged in appellant’s brief that this report is inadmissible as containing hearsay statements and self-serving declarations of the appellee to the Veterans’ Bureau was not included in the assignments of error, and therefore is not before this court for review (Wight v. Washoe County Bank, 251 F. 819 [C. C. A. 9]), nor is the position tenable.
The third point raised by the appellant is covered by the following additional assignment of error: “1. That the trial court erred in entering judgment in favor of the ' plaintiff in violation of the provisions of § 300 of the World War Veterans’ Act and United Stales Code Annotated, Title 38, § 511, in that Lilly Gladys Whitehead was the only beneficiary designated in the policy of insurance herein- sued upon.”
Assuming that the wife, Lilly Gladys Whitehead, had been named by the veteran as the beneficiary of his insurance, she would he entitled to the monthly payments accruing after his death, and because of such death, so long as she survived, until the total number of payments covered by the policy had been made. The estate of the decedent would be entitled to all monthly payments accruing before his death, and, "in the event the beneficiary died before she had received the total number of payments called for by the poliey, the estate would be entitled to the remaining payments. (Section 303 World War Veterans’ Act, 43 Stat. 1310 [38 USCA § 514]).
We will first consider the relative rights of the plaintiff and of the beneficiary. In regard to the rights of the beneficiary, the record is somewhat confusing, both in the trial court and on appeal. Before adverting to this situation, we would call attention to the elaims made by the respective parties in their briefs in this court in reference thereto. The appellant claims that the court erred in awarding judgment for the installments aecruing subsequent to the death of the insured? In support of this contention, it is said: “Plaintiff adduced no proof that no person within the permitted class was designated as beneficiary of the contract sued on, or that such person was designated and did not survive tlie insured, or survived him, but died prior to receiving all the installments due under the contract. Therefore, the court erred in rendering judgment for plaintiff for all the installments accruing subsequent to the death of- insured” — citing, in support of the right of the divorced wife, our decision in United States v. Conklin, 27 P.(2d) 45. The appellee answers this contention as follows: “This alleged error appears to have been an afterthought on the part of the defendant, It was not made the basis of any objection at „ . . , ,, ,, the tnal, nor was the matter apparently considered of any moment during the course of tbe tnal. Tbe judgment was O.K/d by tbe „ i 5 , . ,, , attorney for tbe defendant as well as by tbe J n tt •> -> i tt x , -r> attorney for the united ¡States veterans7 Bu- , ream No amendment was ever proposed and it was not urged or suggested as ground ■ for a new triaI and at the ,time,this appeal was taken no error was assigned on account thereof.
It is further stated that the additional assignment of error has been departed from in the brief, in that the assignment of error was based upon a violation of section 300 of the World War Veterans’ Act (38 USCA § 511) and appellant’s brief claims a violation of section 303 of the World War Veterans’ Act (38 USCA § 514). Appellee calls attention to the rules of this circuit with regard to the assignments of error, and claims that under this rule the error complained of is not available to the defendant. It is also claimed that the assignment is without merit because of the provision of the World War Veterans’ Aet permitting the brihging into a suit upon the policy “all persons having or claiming to have an interest in such insurance.” 38 US CA § 445. The brief continues: “Under this provision the named beneficiary was duly and regularly served with summons and complaint by publication and upon her fail-are to appear default was entered against hf\ It eertarnly was not within the contem?latl0I> C^’es® ^ a dec?ased ”d be foreclosed» from receiving benefits of the insurance where a possiWe named beneficiary has long since disapP*ared and ls+ *ot ,be f °™d- Thm court ta^ notl.e® of the fact that sec-tion 19 aforesaid was intended to accomplish fme ParP°se Md must have been intended fora saf as bas arisen If Bef 303 “ *> 19 °f *be act> tbls Gom* mast coastra® two together aad §fe to the interpretation rea, soaab ? to b? gathered^ therefrom, and the logical interpretation is that^ where a beneficiary has disappeared, ber rights can be adjudicated under section 19, providing b°w adverse claimants might be brought into court, and the failure of this beneficiary to appear and defend her claim, if any, in aecordanee with the summons lawfully served upon her, in accordance with directions eon-tained in section 19 of the act, forecloses her from further claim in the premises; other-wise there could never be any determination of claims arising under this act.”
_ ., , . We will now consider these respective contentions wia referene6 to the issues in the but ba£ore stating the iss«ues M raised , ,, 7 n by tbe complaint and answer we would call r, n « , ,, attention to tbe record witb reference to tbe ... e¡ T *n m j vxn i z joining of Lilly Gladys Whitehead as a par-to ^ liti tion. After issue joined mment ñled a vei,ified titioa ^ whiflh it is stated that in the policy of war risk in-suranee the veteran procured his wife, Lilly Gladys Whitehead, to be designated as the beneficiary; that she was divorced from her husband August 1,1921; that she was a benefieiary within the permitted class at the time she was designated as a beneficiary in the policy, and that she was the designated benefieiary at the time of the maturity of the in-suranee stated in the complaint, to wit, at the time of the death of the veteran on September 30, 1921. The petitioner prayed that an order should be entered “requiring plain-tiff herein to join as an additional party defendant in this action Lilly Gladys White-head.” The motion was brought on for hear-ing and was granted July 22, 1929. Thereafter, on April 15, Graham K. Betts, one of the attorneys for the plaintiff, filed an affidavit stating, among other things, “that upon motion of the defendant, one Lilly Gladys Whitehead, who was designated as beneficiary in the said policy, was ordered to be joined as party defendant in lie said canse by order of this court; that the said Lilly Gladys Whitehead has not been located to effect service of summons and complaint upon her, and that her whereabouts are unknown.” It is further stated that the United States marshal made a return “Not found,” and therefore it would be necessary to effect service of summons by publication. The court thereupon made an order based upon said affidavit, staging, among other things: That Lilly Gladys Whitehead was by order of court made a party defendant; that she could not be located; and that summons should be served by publication for six weeks. This summons was published in the Daily Journal of Commerce once a week for five weeks. The summons was signed by the attorneys. It was entitled, Jessie Smith, Administratrix of the Estate of James W. Whitehead, deceased, Plaintiff, v. United States of America, and Lilly Gladys Whitehead, Dófendants. It was addressed to Lilly Gladys Whitehead and she was directed to “defend the above entitled action in the above entitled court and answer the complaint of the plaintiff and serve a copy of your answer upon the undersigned attorneys * * * and in case' of your failure so to do, judgment will be'rendered against you according to the demand of the complaint, which has been filed -with the clerk of said court. The object of this action is to determine the rights of this plaintiff on a policy of war risk insurance issued to the deceased.”
Thereafter, the default of Lilly Gladys Whitehead was entered. The case was tried without a jury in accordance with the written stipulation of parties. At the conclusion of the trial, the court made its findings of fact and conclusions of la,w. With reference to the defendant Lilly Gladys Whitehead, the court found as follows: “That the defendant, Lilly Gladys Whitehead, was duly and regularly served in this action by publication made in the manner provided by order of this court made and entered in the 15th day of April, 1930.”
It will thus be observed that it was apparently assumed by the parties in the trial court that, upon the entry of the default of the beneficiary, she thereby forfeited her rights in the policy. This, of course, is not true. Moreover, in this connection it should be stated that she was not made a party by any amended pleading, and that no claim is asserted in the complaint adverse to her. However, although the bringing in of Lilly Gladys Whitehead was proper, it was entirely unnecessary. The rights of the administratrix were separate and distinct from those of the beneficiary and the action could have proceeded to judgment without the presence of the beneficiary. Sec decision by Judge Cavanah in Gordon v. United States (D. C.) 37 F.(2d) 925. In view of that fact, we will further examine the record upon the assumption that the beneficiary was not a party to the action to determine the question at issue between the appellant and appellee. In paragraph III of the amended complaint, it is alleged as follows: “That immediately upon enlisting, desiring to bo insured against the risks of war, the said James W. Whitehead applied for a policy of War Risk Insurance in the sum of $10,000 designating no authorized person as beneficiary on said policy; (1) that thereafter, there was deducted from his monthly pay as premium for said insurance, the sum of $6.60 per month, and a policy of insurance was duly issued to him, by the terms whereof, the defendant agreed to pay said James W. Whitehead, the sum of $57.50 per month in the event he suffered total and permanent disability, or in the event of Ms death to make 240 such payments to his estate.”
The defendant answered this paragraph as follows: “.For answer to paragraph III of the first cause of action of plaintiffs amended complaint, defendant admits that on July 30, 1918 James William Whitehead applied for war risk insurance in the amount of $10,-000 payable in monthly installments of $57.50 each, in the event of his death or permanent and total disability while the contract of insurance was in force and effect, and admits that the premiums were paid thereon through November, 1918, but denies each, every a.nd singular the remaining allegations therein contained.”
While the contention made by the appellant is that the appellee failed to prove that there was no designation by the insured of a beneficiary, a more serious difficulty, one arising from the face of the record., is that there- is no sufficient allegation in the complaint that there was no such beneficiary. The statement in paragraph III of the complaint above quoted “designating no authorized person as beneficiary on said policy,” is a mere recital, and therefore not sufficient to show that the plaintiff was entitled to recover monthly installments accruing after the death of the veteran. Even if wo assume that the recital above mentioned amounted to an allegation that the veteran designated no person as-beneficiary, the allegation relates to the application for a policy of war risk insurance made upon enlisting, and is entirely consistent with the fact that he subsequently made such a designation. The allegation that by the terms of the policy the government agreed to pay 240 installments of $57.50 to his estate must be read in the light of the fact that the veteran could at any time designate a beneficiary who, in the event of his death, would receive these payments.
The allegations of the complaint, therefore, are insufficient to show that the administratrix of the estate of the veteran was entitled to receive monthly payments accruing after the death and because of the death of the veteran or to sustain a judgment therefor.
In order to avoid the inference that we have overlooked the rule that, where the parties have treated the pleadings as raising an issue/ and have offered proof thereon, they thereby waive informalities in the pleadings, we should have added that it fairly appears from the record that it was conceded that the veteran had named his wife as a beneficiary, and that such beneficiary was alive at the time of the death of the veteran and at the time of the trial. There is no possible excuse in the record for an attempt to vest in- the veteran's estate property belonging to the beneficiary.
The decision of the trial judge as to the total and, permanent disability is sustained. It is ordered that the judgment be amended by the trial court by striking therefrom all payments accruing after the death of the veteran, awarding to the appellee only payments which had accrued at the time of the death of the veteran. Attorney fees will be reduced to one-tenth of this latter amount.
So modified, the judgment is affirmed.
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_diverse | D | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the parties were truly diverse? 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".
COMMERCIAL UNION INSURANCE COMPANY, Defendant, Appellant, v. Jose GONZALEZ RIVERA et al., Plaintiffs, Appellees.
No. 6613.
United States Court of Appeals First Circuit.
March 25, 1966.
C. A. Romero Barcelo, San Juan, P. R., with whom Seguróla, Romero & Toledo, San Juan, P. R., was on brief, for appellant.
P. Fernandez Cuyar, San Juan, P. R., with whom Rafael A. Gonzalez, J. Cor-dova Rivera and J. Cordova Mercado, Arecibo, P. R., were on brief, for appel-lees.
Before ALDRICH, Chief Judge, and MARIS and McENTEE, Circuit Judges.
Sitting by designation.
McENTEE, Circuit Judge.
This is a diversity suit for damages based on negligence of the defendant’s insured as a result of which plaintiff, Don Jose Gonzalez Rivera, was injured. The evidence shows that on December 27, 1963, Don Jose, while walking along a certain sidewalk in Arecíba, Puerto Rico, slipped and fell on a greasy and slippery substance which the defendant’s insured had negligently deposited on or had allowed to flow and accumulate on said sidewalk. The foreign substance consisted of used lard and other greasy residues from insured’s nearby hamburger and hot dog stand, which -insured’s employees had deposited on a vacant lot near that part of the sidewalk where Don Jose slipped and fell.
Plaintiff, Don Jose, claims that the negligence of the defendant’s insured was the proximate cause of his fall; that as a result of this fall he sustained serious permanent injuries, including brain damage which required extensive surgery, severe pain and suffering, and also sustained a substantial loss of earnings and the loss of his business.
In the same action his wife made claim against the defendant for loss of companionship and consortion and for mental pain and suffering. Plaintiff Don Jose’s four children, Luz Selenia, Rafael, Jose and Gladys Gonzalez, all of legal age at the time of trial, also joined in the suit, making claim for their mental pain and suffering as a result of their father’s injuries. None of these children lived with or were dependent upon the plaintiff Don Jose, for support.
The court originally assigned this case for trial by a jury to July 20, 1965, but on April 9, 1965, advanced the trial date to May 4, 1965. A few days before trial the defendant moved for a continuance on the ground that it did not have sufficient time to prepare its case properly for trial on May 4th. The court denied the motion. This motion was renewed on the opening day of the trial and was again denied. After a trial on the merits, the jury returned a verdict for the plaintiffs and assessed their damages as follows: $37,'500 for Don Jose; $15,-000 for his wife; $12,500 for Luz Se-lenia and $7,500 each for the other three children.
Defendant’s first assignment of error is that the trial court erred in denying its motion for a continuance. Such motions are addressed to the sound discretion of the court and a trial court’s refusal to grant a continuance will not be disturbed on appeal unless abuse of discretion is shown. Grunewald v. Missouri Pacific Railroad Company, 331 F. 2d 983, 986 (8th Cir. 1964); McDonnell v. Tabah, 297 F.2d 731, 733 (2d Cir. 1961).
As to defendant’s contention that it did not have enough time to prepare properly for trial on May 4, 1965, we note that the complaint in this case was filed on August 5, 1964, and answered on October 16, 1964. Defendant then waited nearly five months before initiating its discovery process. Thereafter, more than forty days elapsed before the defendant filed its interrogatories. It is apparent, therefore, that the defendant had ample time to prepare properly for trial on May 4, 1965, and we cannot say the trial court abused its discretion in denying defendant’s motions for a continuance.
The primary question raised by this appeal is whether the children of the injured plaintiff have a cause of action under Puerto Rican law to recover damages for their mental or moral suffering as a result of the injuries sustained by their father. It is well settled that the legal source of tort liability in Puerto Rico is Section 1802 of the Civil Code which, insofar as it is applicable to this case, reads as follows: “A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. * * * ” 31 L.P.R.A. § 5141.
It-is undisputed that children may recover damages for mental suffering and anguish in cases involving the wrongful death of a parent. See Matilde Colon vda. Davila et al. v. P. R. Water Resources Authority, No. R-62-93, Supreme Court of Puerto Rico, May 7, 1964 (not yet officially reported in English). The defendant claims that such damages are not recoverable hi personal injury cases where death has not resulted, However, in a recent case decided by the Supreme Court of Puerto Rico, Santiago Perez Gonzalez et al. v. Manuel Vazqueztell Perez et al., No. 443, September 28, 1962 (not yet officially reported in English), the court affirmed judgments in favor of a father, his wife and two sons and a daughter in circumstances identical to those in the instant case, where the father had suffered personal injuries but not death. See also Ramon Merced et al. v. Government of The Capital of Puerto Rico et al., 85 P.R.R. 530 (1962), where the Supreme Court permitted parents to recover damages for mental suffering caused by injuries to their child.
Moreover, we do, not accept the distinction made by the defendant between wrongful death cases and personal injury cases insofar as resultant mental suffering and anguish of sons and daughters are concerned. It is- obvious that a severe personal injury to a father, resulting in lifetime disability such as paralysis or brain- damage, can often cause more intense and enduring mental anguish and suffering to his son or daughter than would his death. Neither Section 1802 nor the Puerto Rico decisions appear to limit the right to recover damages for mental suffering to death cases only. Under the broad, general language of Section 1802, (“A person who * * * causes damage to another,’’) it is for the Puerto Rican courts to determine on a case to case basis what interests are entitled to juridical protection. The case law in this regard “has already assumed a sufficiently clear and definite position which follows the more 'liberal and at the same time the more just aspects of the doctrine.” Correa v. P. R. Water Resources Authority, 83 P.R.R. 139, 143 (1961). The court went on to say at p. 153: “ * * * we are not inclined to establish as a general rule of law — with complete abstraction of the facts and circumstances involved in each case — a re-strictual and exclusive criterion as to who may claim within the juridical scope of said section.” [1802]
From a review of the Correa decision and the other cases cited herein, it is clear that under Puerto Rican law the sons and daughters of the plaintiff, Don Jose, who was injured as a result of the wrongful act of the defendant, have a right of action for mental suffering, anguish and anxiety caused to them by reason of their father’s injuries. In other words, sons and daughters have a sufficiently close relationship to . their injured father to come within the scope of the term “another” as used in Section 1802; and their resulting mental pain, suffering and anguish are recognized as an element of damages. Correa v. P. R. Water Resources Authority, supra, at 148; Vazquez v. People, 76 P.R.R. 556 (1954); Travieso v. Del Toro, 74 P.R.R. 940 (1953).
As a further argument in support of their contention that these sons and daughters cannot recover, defendant claims that such awards are contrary to the specific terms of its insurance policy. The obligation of the insurer here is to pay ail sums the insured shall become legally obligated to pay as damages. It is admitted that the insured is legally obligated to pay compensation to the plaintiff, Don Jose, and to his wife for injuries suffered by said plaintiff, and under our holding in this case and the cases cited herein, is also legally obligated to pay compensation to the sons and daughters as well. It has been held that an insurance policy obligating the insurer to pay any loss for liability for bodily injuries also includes liability for consequential damages. See 8 Apple-man, Insurance Law and Practice, § 4893 (1962); United States Fidelity & Guaranty Co. v. Shrigley, 26 F.Supp. 625, 628 (W.D.Ark.1939).
Nor do we find any merit in the defendant’s claim that the damages awarded to the sons and daughters were excessive. The reasonableness of these awards was challenged before the trial court in defendant’s motion for a new trial which was denied. It is well settled that “the question of excessiveness of a verdict is primarily for the trial court, and its determination thereof will not be reversed on appeal except for manifest abuse of discretion.” Dubrock v. Interstate Motor Freight System, 143 F.2d 304, 307 (3d Cir. 1944). We are reluctant to overturn jury verdicts on the ground of excessiveness, since the trial court has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and also knows the community and its standards. Solomon Dehydrating Company v. Guyton, 294 F.2d 439, 447 (8th Cir. 1961). The record indicates that the sons and daughters here suffered much more than mere transient or passing sorrow as eon-tended "by the defendant. We cannot say the trial court abused its discretion in upholding the verdicts in their favor.
Defendant also contends that the trial court erred in instructing the jury to make an award for loss of earnings. It claims that there is not sufficient evidence to warrant any award to Don Jose for such loss. The record does not support this contention. The plaintiff, Don Jose, testified that prior to the accident he was an established merchant in Arecibo, where he operated a profitable vegetable and grocery business for more than twenty-five years; that just before the accident his gross income was about $175 to $200 per week; that he has been.junable to return to work and could not continue his business because of the accident; that in his absence so much money was lost that the business had to be liquidated; and that at the time of the trial his only income was derived from social security payments. His wife also testified that prior to the accident, Don Jose paid all the expenses •of the household and that his business establishment had to be sold while he was in the hospital. Finally, there was medical testimony that Don Jose was in good health before the accident and that his complaints of headaches, dizzy spells and inability to concentrate and pursue his occupation after the accident were justified. Such being the state of the record, the district court properly instructed the jury to consider the plaintiff’s loss of earnings and future loss of earnings in making an award. We do not agree wtih the defendant’s contention that the evidence enumerated above was insufficient and that absent more precise data on plaintiff’s earnings, the jury could only speculate.
The plaintiff was not required to offer his books and records into evidence to prove loss, Christian v. The Hertz Corporation, 313 F.2d 174, 175 (7th Cir. 1963), and his loss of wages, although an approximation thereof, was competent evidence to aid the jury in arriving at a fair and just award. Cf. Phoenix Indemnity Co. v. Givens, 263 F.2d 858, 863 (5th Cir. 1959).
All other points raised by the defendant have been considered and have been found to be without merit.
Affirmed.
. As a result of his accident, Don Jose incurred medical, special nursing, and hospital expenses of $4,220.80, which were paid by his daughter, Luz Selenia.
. Defendant claims it did not learn of a second fall sustained by the plaintiff on February 4, 1964 in his doctor’s office, until after it received plaintiff’s answers to its interrogatories a few days before the trial and did not have sufficient time to investigate the causal relationship of said fall to the alleged injuries. Also that it did not have sufficient time before trial to have certain psychometric tests performed on the plaintiff in order to properly evaluate his condition after the accident.
. In wrongful death eases the Supreme Court of Puerto Rico has extended recovery under Section 1802' to other persons who are not as closely related to the deceased. See Correa v. P. R. Water Resources Authority, 83 P.R.R. 139 (1961) (concubines); Andres Cirino etc. v. P. R. Water Resources Authority, R-63-70 December 29, 1964 (not yet officially reported in English) (brothers and sisters).
. “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.”
. Dr. de Ohoudens, who performed the brain surgery on the plaintiff, testified that in spite of all surgery and treatments the plaintiff’s dizziness, headaches, poor memory and nervousness had not disappeared and his physical activity and tolerance for emotional stress was very low.
. It should be noted here that the trial court specifically instructed the jury that they were not permitted to award speculative damages.
Question: Did the court conclude that the parties were truly diverse?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
Robert L. VANDYGRIFT, Plaintiff-Appellant, v. HOME RULE CHARTER COMMISSION, HILLSBOROUGH COUNTY, FLORIDA, Defendant-Appellee.
No. 28812
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 15, 1970.
Robert L. Vandygrift, pro se.
John R. Lawson, Jr., Tampa, Fla., for defendant-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM.
This is an appeal from a final order of the District Court dismissing appellant’s complaint which seeks the empanelling of a three-judge court to declare unconstitutional a Florida statute creating the Hillsborough Home Rule Charter Commission, and to restrain the Commission from carrying out any provisions of the statute.
We agree that the District Court properly dismissed the complaint for lack of jurisdiction. The statute in question is a special act of the Florida Legislature and is of local application affecting Hillsborough County, Florida, only. Consequently, a three-judge federal court is not required. 28 U.S.C. § 2281; Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Rorick v. Board of Com’rs, etc., 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Ex Parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928); Mansell v. Saunders, 5 Cir., 1967, 372 F.2d 573.
Affirmed.
. Referred to by the parties as House Bill No. 2694, Laws of Florida, Acts of 1969 (to be promulgated as 69-1148; Vol. 2, Part 1, of Special Laws).
. Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Co., 5 Cir., 1969, 417 F.2d 526, Part I.
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: |
songer_counsel | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" 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".
Alice GREENE, Widow of John Pierschbacher, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
No. 88-2815.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 9, 1989.
Decided Nov. 21, 1989.
Order Amending Judgment Jan. 24, 1990.
John A. Jarvis, Chariton, Iowa, for petitioner.
Ronald G. Ray, Washington, D.C., for respondent.
Before LAY, Chief Judge, SNEED, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
See 892 F.2d 1385.
The HONORABLE JOSEPH T. SNEED, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.
LAY, Chief Judge.
Alice Greene appeals the Benefits Review Board’s decision overturning the Administrative Law Judge’s determination that she was entitled to survivor’s benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. (1982 & Supp. V 1987) (the Act). The primary issue is whether Greene, a miner’s widow, presented sufficient evidence to benefit from a presumption under the Act that her husband died of a respiratory disease related to his employment in a coal mine.
John Pierschbacher, a coal miner for more than ten years, died on April 9, 1972. His widow, who took the name Greene upon a second marriage, first applied for benefits under the Black Lung Benefits Act in 1973. Her claim was denied. Following amendments to the Act in 1977, she elected to have her claim reviewed by the Social Security Administration (SSA). SSA denied her claim in 1979. SSA then forwarded her claim to the U.S. Department of Labor for subsequent review. The Department’s Office of Workers’ Compensation Programs denied her claim once again in 1980, and forwarded the claim to the Office of Administrative Law Judges. In 1985 the administrative law judge (AU) awarded her benefits, and in 1988 the Benefits Review Board (BRB) reversed. We reverse the BRB because we find the AU’s decision supported by substantial evidence in the record.
The Act awards benefits to the survivors of miners who died from pneumoconiosis, or black lung disease, arising from coal mine employment. Under regulations applicable to Greene’s case, the survivor is entitled to a rebuttable presumption of total disability due to black lung disease if the survivor establishes at least ten years of coal mine employment, and satisfies one of five medical criteria. 20 C.F.R. § 727.203(a) (1989). In a case where there is no medical evidence, the regulations provide that the presumption still may apply if affidavits of the survivor or other people with knowledge of the miner’s physical condition demonstrate “the presence of a totally disabling respiratory or pulmonary impairment.” 20 C.F.R. § 727.203(a)(5).
The present case was completely devoid of medical evidence concerning the miner’s cause of death. Although the record contained a medical certification of death, the AU found that the certificate was merely a recording of the fact of death, and that the physician making the record performed no autopsy and had insufficient knowledge to determine the actual cause of death.
With no medical evidence, Greene sought application of the presumption based on affidavits and testimony by the miner’s close friends and relatives. Greene testified that for years her husband “had a hacking cough.” She said he “would cough at times so he’d just gasp for air and would have [trouble] catching his breath.” She stated that near the time of his death, “he was weakening,” and “the cough had gotten worse. * * * * He would cough until he couldn’t get his breath. You wondered if he was going to be able to catch his breath at all and then he just finally gasped for air and be real weak after he had one of these coughing spells.”
When not working at the mine, her husband had liked to work in the fields helping relatives and neighbors, and to pursue a woodworking hobby. In the several months before his death he had been unable to do this work, due to “a remarkable shortness of breath.” Greene explained that on the day before his death her husband “was extremely tired” and “just couldn’t hardly lift his arms even.” He got a flat tire on his way home and was unable to change it himself. He sought help from his nephew to change it for him.
The widow also testified that her husband’s job at the mine was physically demanding and that he continued regular full-time work at the mine up until the Friday before the Sunday he died. He had never gone to a doctor except for a foot injury on the job and he did not complain about his physical condition.
Three other witnesses also testified, including the miner’s nephew, his brother, and a long-time friend. Their testimony corroborated the widow’s. Each stated that the miner experienced terrible debilitating coughing fits that worsened near his death. They confirmed he had been unable to help with farm work or even change a tire in the days before his death. They also stated that his work at the mine took place under conditions exposing him to large amounts of coal dust, but that he continued to perform his physically demanding job without complaint up until his death.
Based on the evidence that the miner continued working up until the weekend of his death, the Secretary of Labor argued that the lay testimony could not support a conclusion that the miner was “totally” disabled, as required for invocation of the presumption. The AU, however, found that
the affidavits and testimony in the record amply demonstrate that the decedent’s continued coal mine employment up to the week-end before he died was carried on only by his extraordinary effort, and that in any reasonable sense he was racked by a totally disabling respiratory or pulmonary impairment sufficient to invoke [the presumption].
The Benefits Review Board reversed, holding that the AU’s award was not supported by substantial evidence. In essence the BRB stated that if the miner continued working in his regular and physically strenuous job, without need of assistance, then he could not have been totally disabled. The BRB stated that even accepting all the lay testimony that the miner had difficulty breathing and experienced coughing fits, and that he was unable to change a tire on the day of his death, the evidence still was not sufficient to support a presumption of total disability.
Consistent with our recent decision in Mikels v. Director, Office of Workers’ Compensation Programs, 870 F.2d 1407 (8th Cir.1989), we reverse. In Mikels, as in the present ease, the miner’s widow had no medical evidence on which to base her claim. She offered only her own testimony and that of her daughter. The two testified that the miner coughed frequently, was short of breath, and was too tired to perform any work around the house. They also testified as to their perception, the community’s perception, and the miner’s perception that his symptoms had affected his occupational functioning. As in the instant case, however, the miner worked full time up until his death, and the record contained no evidence from the miner’s employer or co-workers that the miner’s breathing problem impaired his job performance.
The AU in Mikels, as in this case, found that taken as a whole the evidence was sufficient to establish the presence of a totally disabling respiratory impairment for the purposes of the presumption of 20 C.F.R. § 727.203(a)(5). The BRB reversed, holding that the evidence was insufficient to support the AU’s decision because the evidence provided no basis to compare the miner’s physical impairments with the demands of his coal mine work. This court reversed the BRB. We held that despite the lack of evidence to show the miner could not meet the demands of his job, the record as a whole contained substantial evidence to support the AU’s finding. Mikels, 870 F.2d at 1410-11.
The facts of these two cases are quite similar, although Mikels presents a somewhat stronger case for total occupational disability. However, we do not find the distinction to be significant. Contrary to the holdings of the Fourth and Seventh Circuits, we do not require direct evidence of impaired work functioning, such as testimony of poor job performance or absenteeism, for a finding of total disability.
Although the record in this case suggested that the miner continued to perform a physically strenuous job up until his death, such evidence is not conclusive. The AU found that only the miner’s herculean efforts allowed him to continue on the job, and that he was totally disabled by any reasonable interpretation of the phrase. Substantial evidence clearly underlay this finding, and the BRB erred by placing conclusive weight on the miner's continued coal mine work.
The determination of the BRB is reversed, and the AU’s award reinstated with retroactive payments plus interest for the period between the BRB’s decision and the date of this judgment.
. Specifically, Mrs. Mikels testified that the year before his death, the miner had quit his job as a road grader because he was short of breath. Mikels, 870 F.2d at 1408. She reported that her husband had trouble finding work afterwards and was unemployed for awhile, “[bjecause people knew he had a breathing problem." Id. at 1409. In addition, Mrs. Mikels and her daughter testified that they and the miner believed that he had been unable to perform adequately the coal mine job in which he was employed when he died. Id.
. In Pendleton v. Director, Office of Workers’ Compensation Programs, 882 F.2d 101, 104 (4th Cir.1989) and Dempsey v. Director, Office of Workers' Compensation Programs, 811 F.2d 1154, 1160-61 (7th Cir.1987), the Fourth and Seventh Circuits upheld denials of benefits where the miners continued their usual coal mine jobs until their deaths and their widows failed to produce evidence of attendance and performance problems.
.20 C.F.R. § 727.205(a) (1989) plainly states that "[a] deceased miner’s employment in a mine at the time of death shall not be used as conclusive evidence that the miner was not totally disabled."
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_typeiss | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
James M. GILROY, Plaintiff-Appellant, v. ERIE LACKAWANNA RAILROAD COMPANY, Defendant-Appellee.
Dockets 34384, 34386.
United States Court of Appeals, Second Circuit.
Argued Jan. 5, 1970.
Decided Jan. 29, 1970.
Theodore H. Friedman, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for appellant.
Donald M. Dunn, Alexander & Green, New York City, for appellee.
Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and JUDD, District Judge.
Sitting by designation.
LUMBARD, Chief Judge:
On December 19, 1967, James M. Gil-roy, an employee of the Erie Lackawan-na Railroad, was awarded $80,000 by jury verdict in the Southern District of New York after a trial of his suit against the Railroad under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq., for injuries suffered in June 1962 during the operation of a railroad turntable in Syracuse, New York. Thereafter Gilroy sought a new trial on the ground that numerous claimed errors during the trial had resulted in a grossly inadequate verdict. From Judge Tyler’s denial of this motion, and of a motion for leave to interview the jurors, 279 F.Supp. 139 (S.D.N.Y.1968), notice of appeal was filed on February 19, 1968. From Judge Tyler’s denial of a later motion for pre-judgment interest, 44 F.R.D. 3 (S.D.N.Y.1968), notice of appeal was filed on April 2, 1968. Accordingly, the record on these appeals was due to be docketed within forty days after the notices were filed on March 31, 1968, and May 12, 1968, respectively. Rule 11(a) Federal Rules of Appellate Procedure. See also Rule 12(a)-(c), Federal Rules of Appellate Procedure.
No steps having been taken to prosecute these appeals taken in February and April 1968, the defendant-appellee moved on December 23, 1969, to dismiss the appeals.
The failure of plaintiff’s counsel diligently to prosecute the appeals according to the rules is clear enough. Although there were some conversations between counsel after the appeals were noticed in early 1968 regarding possible settlement, these were fruitless and did not continue beyond a few months. After these conversations had terminated the parties never stipulated or agreed regarding any extension of time to prosecute the appeals. The appellee’s counsel’s last inquiry on January 10, 1969, regarding the appeals went unanswered for almost one year until appellant’s counsel served answering papers to this motion on January 2,1970.
Plaintiff’s counsel’s excuses for twenty months of inaction are wholly inadequate and unpersuasive. Although the trial lasted from December 6 to 19, 1967, resulting in stenographic minutes of 1276 pages, the issues in this FELA suit were not complex or difficult. The labor of preparing the docket list and paginating the papers, and the trial engagements of counsel during the fall of 1969, fall far short of excusing complete disregard of the Federal Rules of Appellate Procedure. Appellant here was represented by a law firm with a staff of more than 50 attorneys and the engagement of one partner of such a firm is hardly an explanation for inaction.
At the very least, in civil cases where counsel in good faith is doing his best to prosecute an appeal but finds that other pressing engagements make it impossible to meet the deadlines of the Rules, an attempt should first be made to secure a stipulation from opposing counsel. Failing agreement of counsel, motion papers should be timely filed so that the application may be considered by one of the judges of this Court before the time period has expired. Appellant’s counsel never made application of any kind to this Court until response was made to the motion to dismiss when, by affidavit dated December 31, 1969, Mr. Friedman asked for an additional 60 days “to complete the appeal by filing and serving the printed brief and appendix.” ' The affidavit also asserted that he had “devoted the Christmas season to working on the draft brief,” and upon the return of this motion on January 5, 1970, the Court was furnished with Xerox copies of a rough draft of more than 120 pages. Such a belated effort, apparently produced only in response to a motion to dismiss after 20 months of inaction, is not excusable even in the absence of a showing of special prejudice to the appellee.
But in this case we have the additional circumstance that Dr. McLaughlin, a treating physician and the defendant’s one and only medical witness on the all-important question of damages, died just before the motion was heard. While it is true that his testimony could be read to the jury in the event a retrial were ordered, the inability to produce Dr. McLaughlin would be a very real prejudice to the appellee.
The orderly and fair administration of justice requires a firm enforcement of the Rules of Appellate Procedure and the speedy prosecution of appeals. In civil cases, where the parties are agreed to a slower pace we accept their agreements within reason provided they are filed with the clerk before the case is calendared for argument. But failing agreement, the burden is on the appellant to apply, before his time allowance has run, for additional time upon a showing of real need which will not unduly prejudice the appellee. Any dereliction the result of which is to place on the appellee the burden of moving to dismiss the appeal is evidence of a lack of good faith on the part of an appellant. Unless such application for extended time is made so that it may be considered before the allotted time has expired, it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused.
Henceforth, on facts showing such inexcusable neglect as we find here, an appeal will be dismissed. If the party whose appeal is thus dismissed is thereby aggrieved, his remedy will be against his attorney.
If any appellee is required to move for the dismissal of an appeal in a civil case, the cost of his doing so will be assessed against the appellant or, in the proper case, against appellant’s attorney.
We deny the motion to dismiss the appeal, but we award $500 in costs to compensate the appellee for being compelled to make this motion in place of the appellant’s motion for an extension of time which should have been made many months ago in 1968. In addition, inasmuch as appellant’s inexcusable delay may cause additional expense to appellee, we direct appellant’s counsel, Theodore H. Friedman, personally to pay to the appellee any costs which appellee may incur to secure medical testimony and the attendance of witnesses on the question of injuries, should any retrial be required as a result of the prosecution of the appeal. Appellant’s counsel has himself suggested that we assess penalties on him personally rather than visiting on his client the extreme penalty of dismissal. See Rule 46(c), Federal Rules of Appellate Procedure.
The appellant’s application for an additional. 60 days within which to docket the record and file his brief and appendix is denied; the time of the appellant to docket the record and file brief and appendix is extended to 30 days from the date this opinion is filed, failing which the clerk is directed forthwith to dismiss the appeal.
. Rule 46(c) provides:
Disciplinary Power of the Court over Attorneys. A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court.
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_genapel2 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Suzanne E. TIDLER, et al., Appellants, and Helene Mankowitz, et al. v. ELI LILLY AND COMPANY.
No. 85-5981.
United States Court of Appeals, District of Columbia Circuit.
Argued March 4, 1988.
Decided July 12, 1988.
Aaron M. Levine, Washington, D.C., for appellants.
Kenneth Cohen, with whom James A. Hourihan, Washington, D.C., was on the brief, for appellees. Gail L. Heriot, Washington, D.C., also entered an appearance for appellees.
Before RUTH BADER GINSBURG, BUCKLEY and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
D.H. GINSBURG, Circuit Judge:
Plaintiffs are seven of the many so-called “DES daughters” who have sued various drug companies, alleging that they suffer from malformations of their reproductive tracts because they were exposed, in úte-ro, to DES, which was prescribed for their mothers in order to prevent miscarriages. Appellee is Eli Lilly and Co., the only one of nine original defendants that plaintiffs did not voluntarily dismiss. Plaintiffs, who are residents of Maryland and of the District of Columbia, invoked the diversity jurisdiction of the District Court. That court granted Lilly’s motion for summary judgment because it determined that the plaintiffs had no competent evidence that the defendant manufactured the DES ingested by their mothers, and under the laws of both the District of Columbia and of Maryland, plaintiffs cannot recover without proof that the defendant proximately caused their injuries. Plaintiffs brought this appeal and thereafter also moved this court to refer controlling questions of law to the highest court in each of those jurisdictions. We deny that motion and affirm the judgment of the District Court.
I. BaCKGRound
In 1938, British researcher Dr. E.C. Dodds developed a synthetic form of the female hormone estrogen, the drug diethyl-stilbestrol, or DES. Estrogen is essential to a female’s sexual development and to her ability to carry a pregnancy to term. Unlike its natural counterpart, however, DES is relatively inexpensive to produce and is effective in oral doses. Dodds’ research was accordingly regarded as a revolutionary breakthrough in biomedical science.
Dr. Dodds did not, however, patent DES. A dozen American pharmaceutical houses, including Lilly, submitted New Drug Applications (NDAs) to the Food and Drug Administration, proposing to market DES for a variety of medical conditions not involving pregnancy.
Because of the large number of NDAs, the FDA ordered all applicants to pool their supporting data in a single file. The applicants then formed a committee (the “Small Committee”), composing representatives of four companies, including Lilly, to collate and submit the various clinical studies. The FDA thereafter analyzed and supplemented the companies’ submission, and determined that DES was safe in the uses for which they proposed to market it. The Small Committee was dissolved. In 1941, the FDA approved the individual companies’ initial NDAs, under which DES has been marketed ever since for a variety of indications not occurring in pregnant women.
By 1947, researchers discovered a link between miscarriages and a deficiency of natural estrogen in pregnant women, which could be corrected either by injection with natural estrogen or by oral administration of DES. In 1947, the FDA approved the applications of several drug manufacturers, including Lilly, to market DES as a miscarriage preventative. After the FDA determined in 1952 that DES was no longer a “new drug” within the meaning of the Food and Drug Act, and thus, did not require further agency approval for any company to market it for use in recognized indications and in recognized dosages, hundreds of manufacturers entered the market.
DES was widely prescribed for use by pregnant women in the 1950’s and 1960’s. In 1971, however, when medical researchers discovered a rare form of vaginal cancer in some young women who had been exposed to DES while in útero, the FDA disapproved its continued marketing for use by pregnant women.
This case was filed in the district court in 1980 by 21 women, each of whom alleged that the various noncancerous injuries from which she suffers are attributable to her mother’s ingestion of DES. Most of the original plaintiffs voluntarily withdrew their complaints, and of the nine major drug companies originally named as defendants, the remaining plaintiffs dismissed all but Lilly. On motion, the district court granted summary judgment in favor of Lilly against eight of the nine remaining plaintiffs who could not produce competent evidence that Lilly manufactured the DES that allegedly caused their injuries. Seven of those eight have pursued this appeal.
II. Plaintiffs’ Theories of Liability and the District Court’s Disposition
The district court did not decide which jurisdiction’s law governed appellants’ claims. The court made no findings indicating the jurisdiction in which either their mothers were resident when they took DES or where the plaintiffs’ injuries occurred. Instead, because it was exercising its diversity jurisdiction, and because all the plaintiffs are residents of either Maryland or of the District of Columbia, the court analyzed the plaintiffs’ claims under the laws of both jurisdictions. Tidler v. Eli Lilly & Co., C.A. No. 80-2795, Mem.Op. at 19 n. 2 (D.D.C. Aug. 23, 1985). As neither party has argued that the law of a jurisdiction other than the District of Columbia or Maryland applies, we join the district court in assuming that the law of one or both of these jurisdictions is applicable to this case.
The seven appellants concede that, after consulting parents and their physicians and pharmacists, they are unable to identify the firm that manufactured the DES product to which they were allegedly exposed. Plaintiffs, therefore, cannot adduce evidence from which a jury could reasonably conclude that Lilly’s product proximately caused their injuries. Because they lack an essential element of a traditional products liability claim, see generally Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 840-48 (1966), they urged the district court, and now urge this court, to adopt any one or more of several so-called “non-identification” theories of liability that have been allowed in DES cases in a few states. Alternatively, the plaintiffs argue that liability may be predicated on a “bulk supply” theory, holding Lilly responsible as the manufacturer of DES powder later table-tized by an unidentified intermediary in the chain of production.
Plaintiffs’ first theory of liability is an extension of the “concert of action theory,” under which
those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer’s acts done for their benefit, are equally liable.
PROSSER and Keeton on Torts, § 46, at 323 (5th ed. 1984) (footnotes omitted). Of course, the premise for liability under this head is that the defendant, either expressly or tacitly, agreed with another to pursue “a common plan or design to commit a tor-tious act,” see id., which plaintiffs cannot show in this case.
Under the plaintiffs’ extension of this theory, however, recovery could be predicated upon either “conscious parallelism” among manufacturers — for example, in negligently failing to test DES — or upon independent actions of the defendant “halving] the effect of substantially aiding or encouraging” negligent or intentionally tortious activity on the part of others. In Bichler v. Eli Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625, 631 (1981), aff'd on other grounds, 55 N.Y.2d 571, 436 N.E.2d 182, 450 N.Y.S.2d 776 (1982), a DES case was sent to the jury on this basis.
The district court rejected the theory, holding that “Bichler would not be applied in the District of Columbia or Maryland, because these jurisdictions retain the requirement of an agreement ... which the facts surrounding the marketing of DES as a miscarriage preventive [sic] do not support.” See Stevens v. Hall, 391 A.2d 792, 795 (D.C.1978); Walker v. Hall, 34 Md. App. 571, 369 A.2d 105, 112 (1977).
Plaintiffs’ second theory, commonly referred to as “market share” liability, requires only that they prove that their injuries were caused by a defective or unreasonably dangerous product, and that they join enough manufacturers as defendants to ensure that those that produced a “substantial share” of the relevant product market are present before the court. Each defendant is then presumed to be liable for damages in accordance with its respective share of the product market, and in order to avoid judgment must introduce evidence tending to prove that its product could not have caused the plaintiff’s injuries. Thus, plaintiffs are completely relieved of the burden of establishing some causal connection between their injuries and the actions of any particular manufacturer. As stated by the California Supreme Court, which accepted the theory in a DES case, its premise is that “as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury.” Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 936, 163 Cal.Rptr. 132 (1980); accord George v. Parke-Davis, 107 Wash.2d 584, 733 P.2d 507 (1987).
The district court questioned whether this theory had been properly presented by the plaintiffs. Noting, however, that Sin-dell “is inconsistent with traditional principles of comparative negligence, which require that the defendant be causally connected with the actionable allegations, before he is liable,” the court held that “Sin-dell will not be applied in the District of Columbia and Maryland, which require proof of causation.” The court here cited Bowman v. Redding & Co., 449 F.2d 956 (D.C.Cir.1971), and Robin Express Transfer, Inc. v. Canton R.R., 26 Md.App. 321, 338 A.2d 335, 343 (Ct.Sp.App.1975). The court also noted that other courts have rejected the Sindell approach as unworkable because of the difficulty of determining market percentages and making an appropriate apportionment of damages. See Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37, 48-49 (1984); Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1016 (D.S.C. 1981). Indeed, plaintiffs candidly report that Sindell is still in litigation “seven years after the California Supreme Court’s decision.”
Plaintiffs’ third theory, which they refer to as “alternative market share” liability or “risk contribution” liability, would require only that they prove they were injured by DES in útero, and “that the defendant marketed the type of DES involved”; unless Lilly can prove that it did not manufacture the particular DES ingested by the plaintiffs’ mothers, it would be liable. This approach has been accepted upon the premises that:
Each [manufacturer of DES] contributed to the risk of injury to the public and, consequently, the risk of injury to individual plaintiffs. Thus, each defendant shares in some measure, a degree of culpabality in producing or marketing DES.
and that
justice [requires] that the victims of this tragedy should not be denied compensation because of the impossibility of identifying the individual manufacturer....
Martin v. Abbott Laboratories, 102 Wash. 2d 581, 689 P.2d 368, 381, 382 (1984) (“market share alternate liability”); see Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37, 49 (1984). The cited cases differ only in regard to the apportionment of damages. The Martin court held that all liable defendants are
initially presumed to have equal shares of the market and are liable for only the percentage of plaintiff’s judgment that represents their presumptive share of the market. These defendants are entitled to rebut this presumption and thereby reduce their potential liability by establishing their respective market share of DES in the plaintiff’s particular geographic market.... To the extent that ... defendants fail to establish their actual market share, their presumed market share is adjusted so that 100 percent of the market is accounted for.
689 P.2d at 383. By contrast, the Collins court held that a defendant may implead other potentially liable manufacturers, with damages to be apportioned among them pursuant to Wisconsin’s “comparative negligence” doctrine. 342 N.W.2d at 53.
The district court rejected this burden-switching approach to liability because the relevant authorities show that both the District of Columbia and Maryland “require the plaintiff to prove by a preponderance of the evidence that the defendant’s conduct was the proximate cause of her injuries.” The court also noted certain incentive problems with the theory, and observed that
it appears that this theory ... is not merely an extension of established legal principles, but an act of wholesale judicial legislation abrogating longstanding rules of law_ [I]t is beyond the province of this federal Court, sitting in diversity, to effect such sweeping change in local jurisprudence.
Plaintiffs do not shrink from the district court’s characterization; on appeal they frankly “ask this Court to construct [a] market share approach” by which a diligent plaintiff, unable to identify the particular manufacturer that caused her injury, could recover from defendants representing “in excess of 51 per cent” [sic] of the market who “could [not] prove that their drug does not fit the situation.”
Plaintiffs’ last theory of liability — not strictly a “non-identification” theory — is that because Lilly manufactured 90 to 95 percent of the bulk powder DES sold in the Washington metropolitan area, it may be held liable for their injuries, even though another firm may have tabletized, packaged, and marketed the final product (without altering or adding to the active ingredient). Plaintiffs point to the Restatement (Second) of Torts, section 388, which provides:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel.
Additionally, the plaintiffs rely on section 402A and Comment 1 of the Restatement, which state:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer....
# % s¡e * * ¡{c
In order for the rule stated in this section to apply, it is not necessary that the ultimate user or consumer have acquired the product from the seller, although the rule applies equally if he does so. He may have acquired it through one or more intermediate dealers_ The liability stated is one in tort and does not require a contractual relation or privity of contract between the plaintiff and the defendant.
The district court rejected the proposition that Lilly is liable in its capacity as a bulk manufacturer of DES, for two reasons. First, the court held that Lilly was not liable as a matter of law. Quoting Lyons v. Premo Pharmaceutical Lab, Inc., 170 N.J.Super. 183, 406 A.2d 185, 191-92 (1979), the court noted:
“[I]t is not DES which is defective, ... it is only DES when used by pregnant women.” Accord, Doe v. Eli Lilly & Co., [C.A. No. 82-3515, (D.D.C. Apr. 6, 1984)]. The bulk manufacturer of a drug is not liable if it is in a non-defective condition at the time it leaves its control. Id. Rather, it is the intervening, independent tablet manufacturer that has the duty to warn the consumer of any known or forseeable [sic] harmful effects of the dosage and purpose for which it is sold.
The court also held that the evidence adduced by the plaintiffs purporting to establish that Lilly manufactured 95% of the DES sold in the greater Washington metropolitan area during the relevant period of time was incompetent and insufficient to withstand the defendant’s motion for summary judgment. The evidence consisted of the “expert” testimony of three pharmacists, who had surveyed others by telephone. The court found the survey, which was informal to say the least, “untrustworthy because it is unscientific, it was prepared with an eye towards this litigation, ... and it questions persons who may not have been qualified to answer.”
III. Analysis
Plaintiffs do not dispute the district court’s conclusion that neither Maryland nor the District of Columbia has recognized any of the “non-identification” theories of liability that they have advanced. Nor have they cited cases from these jurisdictions that could, in the aggregate, be said to mark a trend toward a more relaxed treatment of the causation requirement in products liability cases. Indeed, the Maryland Court of Appeals is generally indisposed to create new tort theories without the sanction of the representative branches of government:
[I]n considering whether a long-established common law rule — unchanged by the legislature and thus reflective of this State’s public policy — is unsound in the circumstances of modern life, we have always recognized that declaration of the public policy of Maryland is normally the function of the General Assembly; that body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered to revise the common law of Maryland by legislative enactment_ The Court, therefore has been reluctant to alter a common law rule in the face of indications that to do so would be contrary to the public policy of the State.
Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 456 A.2d 894, 908 (1983) (refusing to adopt comparative negligence) (citations omitted).
Plaintiffs nonetheless ask this court “to construct [a] market share approach” for DES daughter cases out of whole cloth, using for a pattern only bits and pieces of the decisions of courts in remote states. Judicial pioneers must no doubt make bold forays into terra incognita in order to chart the way to justice, but that is not the office of a federal court exercising diversity jurisdiction. Ours is the more modest challenge, faithfully to apply the law of the state that the courts of the jurisdiction in which we sit, the District of Columbia, would apply had the case been filed with them. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). As the Supreme Court has made clear, “A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.” Day and Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4, 96 S.Ct. 167, 168, 46 L.Ed.2d 3 (1975); see also Steorts v. American Airlines, Inc., 647 F.2d 194, 197 n. 32 (D.C.Cir.1981).
Thus, we take the law of the appropriate jurisdiction as we find it; and we leave it undisturbed. See Cantwell v. University of Massachusetts, 551 F.2d 879, 880 (1st Cir.1977). As the First Circuit aptly expressed this fundamental rule of federal diversity jurisdiction:
Absent some authoritative signal from the legislature or the [state courts], we see no basis for even considering the pros and cons of innovative theories.... We must apply the law of the forum as we infer it presently to be, not as it might come to be_ [W]e see no basis for applying any rule other than the traditional one.
Dayton v. Peck, Stow & Wilcox Co., 739 F.2d 690, 694-95 (1st Cir.1984) (footnotes omitted); see also Answering Service, Inc. v. Egan, 728 F.2d 1500, 1504 & n. * (D.C. Cir.1984). That said, what is the state of the law?
A. Applying the Law of Maryland or the Law of the District of Columbia
Neither the highest court of Maryland nor that of the District of Columbia has explicitly rejected the specific theories advanced by the plaintiffs. Judging from the difficulties DES daughters face in adducing reliable evidence with which to identify the product manufacturer, and the creativity that some state courts have shown in overcoming them, moreover, we think it quite possible that if the courts of either jurisdiction were to discard their settled principles they would choose such a case as this to do so. It remains clear, however, that the theory that plaintiffs would have us “construct” requires that we build on a new foundation, not on the structural underpinnings of the traditional common law of torts. See, e.g., Jensen v. American Motors Corp., 50 Md.App. 226, 437 A.2d 242, 247 (1981) (requiring “the attribution of the defect to the seller and ... a causal relation between the defect and the injury”); District of Columbia v. Frick, 291 A.2d 83, 84 (D.C.1972) (“It is elementary that an essential element in any negligence action is causation, i.e., a reasonable causal connection between the act or omission of the defendant and the plaintiffs injury.”) A common law decision having such a marked effect on the known public policy of the jurisdictions concerned, even if it is within the power of a state court, is surely beyond the authority of a federal court applying state law. Accordingly, we conclude that the plaintiffs’ non-identification theories are not viable in this case. As a result, we need not address the plaintiffs’ claim that they were prevented by the district court from pursuing the requisite discovery to adduce evidence in support of a modified concert of action theory.
We must also reject the plaintiffs’ “bulk supply” theory of liability. Even if such a theory were viable under established law, and even if the evidence adduced by the plaintiffs supported the proposition they would infer from it, viz. that Lilly manufactured 95 percent of the bulk DES sold in the Washington area during the relevant period, that evidence would not indicate that Lilly produced the powder consumed by the plaintiffs’ mothers. (In fact, however, their evidence demonstrates, at most, that the defendant had some share of the market for bulk powder DES. Lilly’s actual market share could be quite modest or almost 100 percent as far as one can tell from plaintiffs’ proffer.) The bulk powder theory thus suffers from the same infirmity under Maryland and District of Columbia law as do the plaintiffs’ other non-identification theories; plaintiffs cannot demonstrate that any product manufactured by Eli Lilly caused the injuries of which they complain. They have cited no case from either of the jurisdictions that suggests that a substantial share of the product market, even as much as 95% of that market, is a sufficient basis from which a jury reasonably may conclude that the defendant caused the plaintiff’s injury. Indeed, Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 195 A.2d 717, 719 (1963), suggests just the opposite:
The [plaintiff’s] burden [to establish causation] is not met by proof adduced by the plaintiff to the effect that defendant’s negligence may have caused the injuries, or even that it probably did cause them, if it also appears from plaintiff’s evidence that the injuries may have resulted from some other cause for which the defendant is not responsible.
As the district court stated, “the jury in this case is left with no competent evidence from which it could reasonably conclude that the plaintiffs ... have hailed [sic] the right defendant into court. At best, a verdict on liability would be based on speculation.”
The plight of all DES daughters is a difficult one. Some state courts have therefore devised novel methods to ensure these innocent individuals, who through no shortcoming of their own have not been able to identify the responsible manufacturer, recover nonetheless. See Collins, 342 N.W.2d at 49; see generally Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713 (1982). The plaintiffs in this case, however, are in a particularly poor position to urge such novelty upon a federal court, which by reason of diversity between the parties, exercises only a derivative jurisdiction. The plaintiffs had a choice of where to litigate their claims — in the appropriate state courts or in a federal court. If the relevant state authorities do not indicate any particular receptiveness to innovative theories upon which the plaintiffs’ claims vitally depend, plaintiffs’ recourse is not to proceed directly to federal court, there to urge the tribunal to adopt such theories because the equities of the case or fundamental notions of justice require that they recover. On the contrary. If state law is inhospitable to their claims, then they must face up to that fact before the appropriate authorities — judicial or legislative — of the state. It is decidedly not the business of the federal courts to alter or augment state law to meet the felt necessities of the case; to suggest otherwise is to ignore fundamental principles of comity inherent in our federal system of government.
B. Certifying Questions of Law to the Maryland Court of Appeals and the District of Columbia Court of Appeals
On appeal, plaintiffs have for the first time requested that questions of law be certified to the Maryland Court of Appeals and to the District of Columbia Court of Appeals, for those courts to determine after all whether the law of those jurisdictions recognize any of the plaintiffs’ non-identification theories.
Both Maryland and the District of Columbia have enacted legislation providing for such a procedure where there is presented a determinative question of state law “as to which it appears to the certifying court there is no controlling precedent” in the decisions of the highest court of the jurisdiction. Ann.Code of Md., Courts and Judicial PROCEEDINGS § 12-601 (Michie 1984); D.C.Code ANN. § 11-723 (Michie 1987 Cum.Supp.). The decision of a federal court to certify questions of law pursuant to state-established procedures of this type rests with the sound discretion of the court. Lehman Brothers v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). The most important consideration guiding the exercise of this discretion, which happens to be embodied in both the relevant statutes as well, is whether the reviewing court finds itself genuinely uncertain about a question of state law that is vital to a correct disposition of the case before it. See Lee v. Wheeler, 810 F.2d 303, 306 (D.C.Cir.1987); Eli Lilly and Co. v. Home Ins. Co., 764 F.2d 876, 883-84 (D.C.Cir.1985); Walko Corp. v. Burger Chef Systems, Inc., 554 F.2d 1165, 1172-73 (D.C.Cir.1977). Where the applicable state law is clear, certification is inappropriate; it is not a procedure by which federal courts may abdicate their responsibility to decide a legal issue when the relevant sources of state law available to it provide a discernible path for the court to follow. See Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 276 (5th Cir.1976) (“[W]ith the law on this issue fairly clear, we find the price of certainty too high, in terms of delay which may prejudice the [parties’] rights to a speedy resolution of the merits.”); see also Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n. 3 (1st Cir.1985); Harris v. Karri-On Campers, Inc., 640 F.2d 65, 68 (7th Cir.1981); see generally 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4248, at 173 (2d ed. 1988).
The law of both Maryland and the District of Columbia is not lacking in clarity, as far as is relevant here. Of course, we cannot predict with certainty that either jurisdiction would not view the theories proposed by the plaintiffs as compelling in these circumstances and adopt a markedly different view of liability — and perhaps an equally novel idea of their own role in making public policy — than that which they have heretofore held. As we have explained above, however, that is not the relevant consideration; federal courts, sitting in diversity, are obligated to apply, not to amend, existing state law.
In addition to the condition of existing state law, which is a sufficient ground in itself, there are other reasons for our refusing to exercise our discretion to certify questions in this case. First, the plaintiffs chose to litigate these claims before the district court, fully aware that neither of the relevant jurisdictions recognize the theories they were advancing. Obviously, their choice of forum is not helpful to their request for certification. See Cantwell, 551 F.2d at 880 (“[0]ne who chooses the federal courts in diversity actions is in a peculiarly poor position to seek certification.”); C. Wright, A. Miller, & E. Cooper, suyra, § 4248, at 176. To compound matters, plaintiffs inexplicably failed to request certification before the district court, even though the Maryland certification statute specifically allows the district court to avail itself of this procedure, and the question of District law might have been certified to this court, which might, in turn, have certified it to the District of Columbia Court of Appeals, a possibility upon which we do not pass today, but which would commend itself the more if the same question had been transmitted to the Maryland Court of Appeals in the same case. Instead, plaintiffs pursued discovery and pretrial motions for several years, filed and opposed dispositive motions grounded upon Maryland and District of Columbia law, and when they saw the result, thought better of the state after all. The plaintiffs’ request for certification could hardly have been made less compelling. See Karri-On Campers, 640 F.2d at 68; Turner v. Smalis, Inc., 622 F.Supp. 248, 249-50 (D.Md. 1985); cf. Rubins Contractors, Inc. v. Lumbermens Mutual Ins. Co., 821 F.2d 671, 677 (D.C.Cir.1987) (declining to certify questions of law where “the posture of the ease mandates prompt resolution of [the] issue”).
Second, the record before us is so lacking in concreteness that to certify plaintiffs’ questions of law would merely be to invite our state court colleagues to an exercise in speculation. It has not even been determined whether the law of either of these jurisdictions certainly applies to the case. It would be a wholly pointless waste of judicial (as well as the parties’) resources, for an already overworked state court to consider the complex questions of law propounded by the plaintiffs, if it were only to find in the end that its efforts were irrelevant because the law of another jurisdiction is controlling.
Nor does the record in other respects display the necessary factual clarity to pose a well-framed, concrete question of law. See Ann.Code of Md„ Courts and Judicial Proceedings § 12-603(a)(2) (Mi-chie 1984) (“A certification order shall set forth ... [a] statement of all facts relevant to the question certified showing fully the nature of the controversy in which the question arose.”); Florida ex rel. Shevin, 526 F.2d at 275 (noting that one factor to be considered in determining whether to certify is the “possible inability to frame the issue so as to produce a helpful response on the part of the state court”). The evidence that might arguably be applicable to any of the plaintiffs’ theories is sketchy, at best; at worst, it is, as the district court concluded, unredeemed by circumstantial indicia of trustworthiness, and inadmissible at trial. Given the marked departure from traditional tort principles that the plaintiffs are advocating, the absence of a concrete record upon which to decide these issues would make their request even more daunting to the courts that would receive it. Even if either of these courts would accept a certified question of law informed only by the sketchy record before us, which is by no means a foregone conclusion, see e.g., Wood v. Old Security Life Ins. Co., 643 F.2d 1209, 1216 (5th Cir.1981), any answer provided by these courts would of necessity be cast in abstract terms. A due regard for the utility of the certification procedure suggests we ought not to put into motion such a cumbersome, and possibly fruitless, course of proceedings.
IV. Conclusion
The district court correctly held that the defendant was entitled to summary judgment, inasmuch as the plaintiffs cannot, by their own admission, prove that the conduct of the defendant proximately caused their injuries, as required by the law of both the District of Columbia and of Maryland. We find it would be inappropriate to prolong this litigation by granting plaintiffs’ afterthought motion to certify questions of law to the Maryland Court of Appeals and the District of Columbia Court of Appeals. Accordingly, the judgment of the district court is
Affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_respond1_3_3 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
SANBORN v. HELVERING, Com’r of Internal Revenue.
No. 11550.
Circuit Court of Appeals, Eighth Circuit.
Jan. 5, 1940.
Rehearing Denied Jan. 23, 1940.
Charles E. Whittaker, of Kansas City, Mo. (Henry N. Ess and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for petitioner.
Harry Marselli, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before STONE, SANBORN, and THOMAS, Circuit Judges.
SANBORN, Circuit Judge.
This is a proceeding to review a decision of the Board of Tax Appeals (39 B.T.A. 721) sustaining the liability asserted against Marie Minor Sanborn, “as transferee and/or fiduciary”, for a deficiency in income taxes of the estate of her father, William E. Minor, for the year 1929, which she contends is barred by the" statute of limitations.
The facts are stipulated. William E. Minor, a resident of Kansas City, Missouri, died December 15, 1928. The petitioner and J. A. Minor were appointed executrix and executor of his estate January 2, 1929, by the Probate Court of Jackson County, Missouri. On March 4, 1930, the petitioner, as executrix, was granted an extension of time to May 15, 1930, within which to file the income tax return of the estate for 1929. On March 31, 1930, the petitioner, as executrix, and J. A. Minor, as executor, received their discharge from the Probate Court. On April 9, 1930, “Mrs. Marie M. Sanborn, Executrix, Estate of Dr W. E. Minor, Deceased,” filed an income tax return of the estate for the year 1929. The return was verified on April 8, 1930, by the petitioner and J. A. Minor as “Executors”. April 8, 1932, the Commissioner, by letter, proposed a deficiency in income taxes of the estate for 1929 of $34,543.16. On May 27, 1932, the petitioner and J. A. Minor, as “former executrix and executor” of the estate, filed with the Board a petition for redetermination of the proposed deficiency. In their petition they recited that they “were the executrix and executor of the Estate of Dr. William E. Minor, Deceased, under the will, until discharged upon the closing of the estate March 31, 1930.” The petition was served upon the Commissioner the day it was filed. In his answer thereto, he admitted the discharge of the executors on March 31, 1930, as alleged in the petition. The proceeding before the Board was entitled, “Marie Minor Sanborn and J. A. Minor, former executrix and executor of the Estate of Dr. William E. Minor, Petitioners, v. Commissioner of Internal Revenue, Respondent.” Thereafter the Board determined that .the amount of the deficiency in income taxes of the estate for the year 1929 was $22,295.50. On June 25, 1936, the petitioner and J. A. Minor, “as former executrix and executor” of the estate, filed a petition with this Court for a review of the decision of the Board. This Court affirmed. 8 Cir., 88 F.2d 134. A petition for certiorari was denied, 301 U.S. 700, 57 S.Ct. 930, 81 L.Ed. 1355, on May 24, 1937.
On July 17, 1936, the Commissioner assessed the amount of the deficiency as determined by the Board, together with interest, against the estate of William E. Minor. A warrant of distraint against the estate was issued on August 10, 1936, and was returned unsatisfied, with the statement that the estate had been distributed and there were no assets out of which the tax could be satisfied. The petitioner had received from the estate property worth approximately $500,000. On September 22, 1937, the Commissioner sent a notice to the petitioner proposing to assess against her, as a transferee of assets of the estate “and/or as fiduciary of the estate of William E. Minor, deceased,” the tax which had been assessed against the estate, with interest. She appealed to the Board, asserting that her liability, as transferee and fiduciary, for the tax against the estate was barred by limitations. The Board ruled against her.
The applicable Revenue Act is that of 1928, c. 852, 45 Stat. 791. Section 275(a) of that Act, 26 U.S.C.A. § 275 note, provides : “The amount of income taxes imposed by this title shall be assessed within two years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period.” Section 276(a), 26 U.S.C.A. § 276 (a) provides: “In the case of * * * a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” Section 276 (c) provides: “Where the assessment of any income tax imposed by this title [chapter] has been made within the period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court, but only if begun (1) within six years after the assessment of the tax, * * * .” Section 277, 26 U.S.C.A. § 277, provides: “The running of the statute of limitations provided in section 275 or 276 * * * shall (after the mailing of a notice under section 272(a)) be suspended for the period during which the Commissioner is prohibited from making the assessment or beginning distraint or a proceeding in court (and in any event, if a proceeding in respect of the deficiency is placed on the docket of the Board, until the decision of the Board becomes final), and for sixty days thereafter.” Section 272(h), 26 U.S.C.A. § 272(h), provides that the date on which a decision of the Board of Tax Appeals becomes final shall be determined according to the provisions of Section 1005 of the Revenue Act of 1926. Section 1005(a) (3) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 110, 26 U.S.C.A. § 640 (a, b), provides that a decision of the Board becomes final upon denial of a petition for certiorari by the Supreme Court. Section 311 of the Revenue Act of 1928,. 26 U.S.C.A. § 311, provides that the liability of an initial transferee shall be assessed not later than one year after the expiration of the period for assessment against the taxpayer; that the liability of a fiduciary shall be assessed not later than, one year after it arises or not later than the expiration of the period for collection of the tax, whichever is later; and that if the taxpayer is deceased the period of limitation for assessment shall be the samo as would be in effect had death not occurred.'
Section 312(a) and (c) of the Revenue-Act of 1928, 26 U.S.C.A. § 312(a, c), provides :
“(a) Fiduciary of taxpayer. Upon notice to the Commissioner that any person is acting in a fiduciary capacity such fiduciary shall assume the powers, rights, duties, and privileges of the taxpayer in respect of a tax imposed by this title [chapter] (except as otherwise specifically provided and except that the tax shall be collected from the estate of the taxpayer), until notice is given that the fiduciary capacity has terminated.
******
“(c) Manner of notice. Notice under subsection (a) or (b) shall be given in accordance with regulations prescribed by the Commissioner with the approval of the Secretary [of the Treasury].”
Treasury. Regulations 74, Art. 1241, provides that the notice of termination of fiduciary capacity referred to in Section 312 shall be a written notice signed by the fiduciary and filed with the Commissioner, and that “when the fiduciary capacity has terminated, the fiduciary in order to be relieved of any further duty or liability as such, must file with the Commissioner written notice that the fiduciary capacity has terminated as to him, accompanied by satisfactory evidence of the termination of the fiduciary -capacity.”
The petitioner’s argument is, in substance, as follows: That the executors on March 31, 1930, when they were discharged, became functi officio and were without capacity to represent the estate, but, because they had given to the Commissioner no notice of their discharge, they were, by virtue of Section 312(a), clothed with the power and duty to file an income tax return for the estate, which was done on April 9, 1930; that the filing of this return was therefore effective to start the statute of limitations running against the assessment and collection of the income tax owed by the estate; that the petition which the discharged executors filed with the Board on May 27, 1932, for a redetermination of the deficiency proposed by the Commissioner against the estate, did not suspend the running of the statute of limitations because it contained notice to the Commissioner of their discharge and he conceded their discharge in his answer; that, having notice of the termination of their fiduciary capacity, the Commissioner was not disabled by the proceeding with respect to the deficiency from assessing it against the estate and against transferees “and/or” fiduciaries, and the proceeding did not extend* the time within which the assessment and collection of tax could be made; and that, the time having run from April 9, 1930, without interruption, the proposed assessment of the tax against the petitioner came too late.
It is to be noted that, while the petitioner invokes the aid of Section 312(a) in order to demonstrate that the executors had authority to file a return for the estate on April 9, 1930, she fails to give that statute full effect when she deals with the petition filed with the Board on May 27, 1932. It is'certain that if Section 312(a) empowered the executors to file a return for the estate after, their discharge, it also empowered them to initiate the proceeding with respect to the deficiency in income tax of the estate proposed by the Commissioner. Having been properly initiated, that proceeding, until finally terminated, suspended the running of the statute of limitations. Since the executors never gave the notice required by Section 312(a) and (c) to divest themselves of the powers and duties of the taxpayer with respect to the tax, they were clothed with such powers and duties at all times during the pendency of the proceeding initiated by them before the Board and thereafter. The statute clearly provides for the continuation of the powers and duties of a fiduciary with respect to a tax until a specified notice is given. It does not provide that notice of termination of fiduciary capacity contained in a petition filed with the Board shall be deemed the equivalent of the statutory notice. It does not authorize the Commissioner to waive the statutory notice. His admission that a fiduciary has been discharged is not an admission that the statutory responsibility of that fiduciary with respect to a tax has been terminated.
We are satisfied that the proceeding before the Board initiated May 27, 1932, suspended the running of the statute and that the liability of the petitioner for the tax against the estate is not barred by limitations.
The order of the Board is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer: |
sc_respondent | 130 | 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.
FEDERAL ELECTION COMMISSION et al. v. NATIONAL RIGHT TO WORK COMMITTEE et al.
No. 81-1506.
Argued November 1, 1982
Decided December 13, 1982
Rehnquist, J., delivered the opinion for a unanimous Court.
Charles N. Steele argued the cause for petitioners. With him on the briefs were Richard B. Bader, Miriam Aguiar, and Jeffrey H. Bowman.
Richard H. Mansfield III argued the cause for respondents. With him on the brief were George D. Webster, Edith D. Hakola, and Richard J. Clair
J. Albert Woll, Laurence Gold, and Margaret E. McCormick filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.
H. Richard Mayberry, Jr., filed a brief for the Public Service Research Council et al. as amici curiae urging affirmance.
Justice Rehnquist
delivered the opinion of the Court.
The question in the case ultimately comes down to whether respondent National Right to Work Committee (NRWC or respondent) limited its solicitation of funds to “members” within the meaning of 2 U. S. C. §441b(b)(4)(C).
In April 1977, petitioner Federal Election Commission (Commission) determined that there was probable cause to believe that NRWC had violated the above-cited provisions of the Act by soliciting contributions from persons who were not its “members.” Shortly thereafter, respondent filed a complaint in the United States District Court for the Eastern District of Virginia seeking injunctive and declaratory relief against the Commission. One month later, the Commission filed an enforcement proceeding against respondent in the United States District Court for the District of Columbia, seeking to establish respondent’s violation of 2 U. S. C. §441b. The actions were consolidated in the latter court, which granted summary judgment in favor of the Commission on the basis of stipulated facts. 501 F. Supp. 422 (1980). The judgment of the District Court was reversed by the Court of Appeals for the District of Columbia Circuit, 214 U. S. App. D. C. 215, 665 F. 2d 371 (1981), and we granted certiorari. 456 U. S. 914 (1982).
Respondent NRWC is a nonprofit corporation without capital stock organized under the laws of the Commonwealth of Virginia. Given the central role of the congressional use of the word “member” in this litigation, it is useful to set forth respondent’s organizational history in some detail. In 1975, respondent’s predecessor and another corporation merged; the articles of merger filed in the District of Columbia by the successor corporation stated that NRWC “shall not have members.” A similar statement is contained in the articles of incorporation of NRWC that are presently filed in Virginia. Likewise, respondent’s bylaws make no reference to members or to membership in the corporation. The stated purpose of NRWC, according to its Virginia articles of incorporation, is “[t]o help make the public aware of the fact that American citizens are being required, against their will, to join and pay dues to labor organizations in order to earn a living.” App. to Pet. for Cert. 17a. In pursuance of this objective, NRWC regularly mails messages to millions of individuals and businesses whose names have found their way onto commercially available mailing lists that the organization has purchased or rented. The letters do not mention membership in NRWC, but seek donations to help NRWC publicize its opposition to compulsory unionism and frequently contain a questionnaire that the recipient is requested to answer and return.
In late 1975, in order to comply with § 441b, NRWC established a separate segregated fund, see §441b(b)(4)(C), “to receive and make contributions on behalf of federal candidates.” The fund was denominated the “Employees Rights Campaign Committee” (ERCC); its operation was completely subsidized from the NRWC treasury, which paid all the expenses of establishing and administering the fund, and of soliciting contributions. During part of 1976, NRWC sent letters to some 267,000 individuals, who had at one time contributed to it, soliciting contributions to ERCC. As a result of these solicitations, the fund received some $77,000 in contributions.
In October 1976, another lobbying group, the Committee for an Effective Congress, filed a complaint against ERCC with the Commission, alleging violation of 2 U. S. C. §441b(b)(4). The complaint asserted that NRWC had violated this section of the Act by using corporate funds to solicit contributions to ERCC from persons who were not NRWC’s stockholders, executive or administrative personnel, or their families. NRWC did not deny these assertions, but took the position that the recipients of its solicitation letters were “members” of NRWC within the proviso set forth in § 441b(b)(4)(C). The Commission found probable cause to believe that a violation had occurred, and after completing the investigative procedures set out in the statute and unsuccessfully attempting to resolve the matter through conciliation, see 2 U. S. C. §437g (1976 ed., Supp. V), it authorized the filing of a civil enforcement suit. This litigation followed.
Essential to the proper resolution of the case is the interpretation of § 441b(b)(4)(C)’s statement that the prohibition against corporate solicitation contained in § 441b(b)(4)(A) shall not prevent “a... corporation without capital stock... from soliciting contributions to [a separate segregated fund established by a corporation without capital stock] from members of such... corporation....” (Emphasis added.) The Court of Appeals rejected the Commission’s contentions regarding the meaning of “member,” and went on to hold that the term “embraces at least those individuals whom NRWC describes as its active and supporting members.” 214 U. S. App. D. C., at 220, 665 F. 2d, at 376. The opinion of the Court of Appeals indicates that this construction was reached at least in part because of concern for the constitutional implications of any narrower construction. Id., at 218-220, 665 F. 2d, at 374-376. As explained below, we reject this construction.
The statutory purpose of §441b, as outlined above, is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U. S. C. §441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of “separate segregated fund[s],” which may be “utilized for political purposes.” 2 U. S. C. §441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation to solicit contributions to a fund established by it from persons other than its “stockholders and their families and its executive or administrative personnel and their families.” 2 U. S. C. § 441b(b)(4)(A). Finally, and of most relevance here, the section just quoted has its own proviso, which states in pertinent part that “[t]his paragraph shall not prevent a... corporation without capital stock, or a separate segregated fund established by a... corporation without capital stock, from soliciting contributions to such a fund from members” of the sponsoring corporation. 2 U. S. C. § 441b(b)(4)(C). The effect of this proviso is to limit solicitation by nonprofit corporations to those persons attached in some way to it by its corporate structure. Ibid.
The Court of Appeals, as we have noted, construed the term “member” in § 441b to embrace “at least those individuals whom NRWC describes as its active and supporting members.” 214 U. S. App. D. C., at 220, 665 F. 2d, at 376. The two categories of members recognized by NRWC were described in the following terms by the Court of Appeals:
“NRWC attracts members by publicizing its position on issues relating to compulsory unionism through advertisements, personal contacts, and, primarily, letters. These letters describe the purpose of NRWC, urge the recipient to assist NRWC (by, for example, writing to legislators), request financial support, and ask the recipient to respond to a questionnaire that will determine whether that person shares a similar political philosophy. A person who, through his response, evidences an intention to support NRWC in promoting voluntary unionism qualifies as a member. A person who responds without contributing financially is considered a supporting member; a person who responds and also contributes is considered an active member. NRWC sends an acknowledgement and a membership card to both classes. In the regular course of operations, NRWC’s members receive newsletters, action alerts, and responses to individual requests for information. They respond to issue surveys and are asked to communicate with their elected representatives when appropriate. See Joint App., vol. II, at 387 et seq.” Id., at 217, n. 1, 665 F. 2d, at 373, n. 1.
In respondent’s view, both categories satisfy the membership requirement of § 441b(b)(4)(C).
The Commission, however, insists that these standards of “membership” are too fluid and insubstantial to come within the statutory term “member,” and argues further that they do not comply with the Commission’s regulation defining the term:
“(e) ‘Members’ means all persons who are currently satisfying the requirements for membership in a membership organization, trade association, cooperative, or corporation without capital stock.... A person is not considered a member under this definition if the only requirement for membership is a contribution to a separate segregated fund.” Federal Election Commission Regulations, 11 CFR § 114.1(e) (1982).
The Commission also contends that NRWC’s Virginia articles of incorporation, filed by respondent, which state that respondent has no members, are dispositive. While we do not feel sufficiently informed at this time to attempt an exegesis of the statutory meaning of the word “members” beyond that necessary to decide this case, we find it relatively easy to dispose of these arguments that respondent’s solicitation was limited to its “members,” since in our view this would virtually excise from the statute the restriction of solicitation to “members.”
Section 441b(b)(4)(C) was one of several amendments to the Act enacted in 1976. The entire legislative history of the subsection appears to be the floor statement of Senator Allen who introduced the provision in the Senate and explained the purpose of his amendment in this language:
“Mr. President, all this amendment does is to cure an omission in the bill. It would allow corporations that do not have stock but have a membership organization, such as a cooperative or other corporations without capital stock and, hence, without stockholders, to set up separate segregated political funds as to which it can solicit contributions from its membership; since it does not have any stockholders to solicit, it should be allowed to solicit its members. That is all that the amendment provides. It does cover an omission in the bill that I believe all agree should be filled.” 122 Cong. Rec. 7198 (1976).
This statement suggests that “members” of nonstock corporations were to be defined, at least in part, by analogy to stockholders of business corporations and members of labor unions. The analogy to stockholders and union members suggests that some relatively enduring and independently significant financial or organizational attachment is required to be a “member” under § 441b(b)(4)(C). The Court of Appeals’ determination that NRWC’s “members” include anyone who has responded to one of the corporation’s essentially random mass mailings would, we think, open the door to all but unlimited corporate solicitation and thereby render meaningless the statutory limitation to “members.”
We also assume, since there is no body of federal law of corporations, see Burks v. Lasker, 441 U. S. 471, 477 (1979), that Congress intended at least some reference to the laws of the various States dealing with nonprofit corporations. In an analogous situation, where Congress had authorized state taxation of “real property” of subsidiaries of the Reconstruction Finance Corporation, the Court said:
“We think the congressional purpose can best be accomplished by application of settled state rules as to what constitutes ‘real property,’ so long as it is plain, as it is here, that the state rules do not effect a discrimination against the Government, or patently run counter to the terms of the Act.” RFC v. Beaver County, 328 U. S. 204, 210 (1946).
Like property, the structure and powers of nonprofit corporations are defined principally by state law; as in the case of property, state law provides some guidance in deciding whether NRWC’s solicitation was confined to its “members.”
Most States apparently permit nonprofit corporations to have “members” similar to shareholders in a business corporation, although state statutes generally do not seem to require this form of organization, see, e. g., ALI-ABA, Model Nonprofit Corporation Act §11 (1964); in many States the board of directors of a nonprofit corporation may be an autonomous, self-perpetuating body. Given the wide variety of treatment of the subject of membership in state incorporation laws, and the focus of the Commission’s regulation on the corporation’s own standards, we think it was entirely permissible for the Commission in this case to look to NRWC’s corporate charter under the laws of Virginia and the bylaws adopted in accordance with that charter.
Applying the statutory language as we interpret it to the facts of this case, we think Congress did not intend to allow the 267,000 individuals solicited by NRWC during 1976 to come within the exclusion for “members” in 2 U. S. C. § 441b(b)(4)(C). Although membership cards are ultimately sent to those who either contribute or respond in some other way to respondent’s mailings, the solicitation letters themselves make no reference to members. Members play no part in the operation or administration of the corporation; they elect no corporate officials, and indeed there are apparently no membership meetings. There is no indication that NRWC’s asserted members exercise any control over the expenditure of their contributions. Moreover, as previously noted, NRWC’s own articles of incorporation and other publicly filed documents explicitly disclaimed the existence of members. We think that under these circumstances, those solicited were insufficiently attached to the corporate structure of NRWC to qualify as “members” under the statutory proviso.
Unlike the Court of Appeals, we do not think this construction of the statute raises any insurmountable constitutional difficulties. The Court of Appeals expressed the view that the sort of solicitations involved here would neither corrupt officials nor coerce members of the corporation holding minority political views, the two goals which it believed Congress had in mind in enacting the statutory provisions at issue. That being so, the Court of Appeals apparently thought, and respondent argues here, that the term “members” must be given an elastic definition in order to prevent impermissible interference with the constitutional rights enunciated in cases such as NAACP v. Button, 371 U. S. 415 (1963), and Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980). Similarly, respondent places considerable reliance on our statement in Buckley v. Valeo, 424 U. S. 1, 25 (1976):
“The Court’s decisions involving associational freedoms establish that the right of association is a ‘basic constitutional freedom,’ Kusper v. Pontikes, 414 U. S., at 57, that is ‘closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society.’ Shelton v. Tucker, 364 U. S. 479, 486 (1960). See, e. g., Bates v. Little Rock, 361 U. S. 516, 522-523 (1960); NAACP v. Alabama, [357 U. S.], at 460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental ‘action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.’ NAACP v. Alabama, supra, at 460-461.”
Under this standard, respondent asserts, the Act’s restriction of its solicitation cannot be upheld.
While we fully subscribe to the views stated in Buckley, in the very next sentence to the passage quoted by the respondent, the Court went on to say:
“Yet, it is clear that ‘[n]either the right to associate nor the right to participate in political activities is absolute.’ CSC v. Letter Carriers, 413 U. S. 548, 567 (1973).” Ibid.
In this case, we conclude that the associational rights asserted by respondent may be and are overborne by the interests Congress has sought to protect in enacting § 441b.
To place respondent’s constitutional claims in proper perspective, we repeat language used in Buckley v. Valeo, supra, at 13:
“The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case.”
The first purpose of §441b, petitioners state, is to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political “war chests” which could be used to incur political debts from legislators who are aided by the contributions. See United States v. Automobile Workers, 352 U. S. 567, 579 (1957). The second purpose of the provisions, petitioners argue, is to protect the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed. See United States v. CIO, 335 U. S. 106, 113 (1948).
We agree with petitioners that these purposes are sufficient to justify the regulation at issue. Speaking of corporate involvement in electoral politics, we recently said:
“The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 788, n. 26 (1978) (citations omitted).
Likewise, in Buckley v. Valeo, supra, at 26-27, we specifically affirmed the importance of preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption. These interests directly implicate “the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process.” United States v. Automobile Workers, supra, at 570.
We are also convinced that the statutory prohibitions and exceptions we have considered are sufficiently tailored to these purposes to avoid undue restriction on the associational interests asserted by respondent. The history of the movement to regulate the political contributions and expenditures of corporations and labor unions is set forth in great detail in United States v. Automobile Workers, supra, at 570-584, and we need only summarize the development here. Seventy-five years ago Congress first made financial contributions to federal candidates by corporations illegal by enacting the Tillman Act, ch. 420, 34 Stat. 864. Within the next few years Congress went further and required financial disclosure by federal candidates following election, Act of June 25, 1910, ch. 392, 36 Stat. 822, and the following year required pre-election disclosure as well. Act of Aug. 19, 1911, ch. 33, 37 Stat. 25. The Federal Corrupt Practices Act, passed in 1925, extended the prohibition against corporate contributions to include “anything of value,” and made acceptance of a corporate contribution as well as the giving of such a contribution a crime. 43 Stat. 1070.
The first restrictions on union contributions were contained in the second Hatch Act, 54 Stat. 767, and later, in the War Labor Disputes Act of 1943, § 9, 57 Stat. 167, union contributions in connection with federal elections were prohibited altogether. These prohibitions on union political activity were extended and strengthened in the Taft-Hartley Act, 61 Stat. 136, which broadened the earlier prohibition against contributions to “expenditures” as well. Congress codified most of these provisions in the Federal Election Campaign Act of 1971, 86 Stat. 3, and enacted later amendments in 1974, 88 Stat. 1263, in 1976, 90 Stat. 475, and in 1980, 93 Stat. 1339. Section 441b(b)(4)(C) is, as its legislative history indicates, merely a refinement of this gradual development of the federal election statute.
This careful legislative adjustment of the federal electoral laws, in a “cautious advance, step by step,” NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 46 (1937), to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference, see Rostker v. Goldberg, 453 U. S. 57, 64, 67 (1981). As we discuss below, it also reflects a permissible assessment of the dangers posed by those entities to the electoral process.
In order to prevent both actual and apparent corruption, Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. See United States v. Morton Salt Co., 338 U. S. 632, 652 (1950). While §441b restricts the solicitation of corporations and labor unions without great financial resources, as well as those more fortunately situated, we accept Congress’ judgment that it is the potential for such influence that demands regulation. Nor will we second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As we said in California Medical Assn. v. FEC, 453 U. S. 182, 201 (1981), the “differing structures and purposes” of different entities “may require different forms of regulation in order to protect the integrity of the electoral process.”
To accept the view that a solicitation limited only to those who have in the past proved “philosophically compatible” to the views of the corporation must be permitted under the statute in order for the prohibition to be constitutional would ignore the teachings of our earlier decisions. The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, First National Bank of Boston v. Bellotti, supra, at 788, n. 26, and there is no reason why it may not in this case be accomplished by treating unions, corporations, and similar organizations differently from individuals. California Medical Assn. v. FEC, supra, at 201.
Respondent also asserts a claim of unconstitutional vagueness, relying on such additional cases as Connally v. General Construction Co., 269 U. S. 385 (1926); Grayned v. City of Rockford, 408 U.
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_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.
Raymond C. PRICE and Control Sciences, Inc., Plaintiffs-Appellees, v. LAKE SALES SUPPLY R. M., INC., Defendant-Appellant.
No. 74-1038.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 9, 1974.
Decided Oct. 16, 1974.
Rehearing Denied Dec. 5, 1974.
Richard D. Law, Denver, Colo. (James E. Pittenger, Denver, Colo., on the brief), for plaintiffs-appellees.
John M. Evans of Fuller & Evans, Denver, Colo. (Richard T. Laughlin, Kearny, N. J., and Clyde A. Faatz, Jr., Denver, Colo., on the brief), for defendant-appellant.
Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
This is a patent case which presents issues as to the validity of a patent (U. S. Patent No. 3,528,560) on a sample display rack. It was issued September 15, 1970 and is known as the Price Patent. Appellant Lake Sales Supply is shown to be a California corporation which had headquarters in Denver from January 1971 to March 1972, but subsequently ceased to do business in Colorado.
In addition to the validity issue it is contended by appellant that the Price Patent was not infringed: (a) that is, that the device did not infringe the patent, and (b) that there is a dearth of proof to establish an act of infringement.
Trial was to the court. The judge entered his memorandum opinion order and judgment on October 16, 1973. This contained the court’s findings of fact and conclusions of law. The patent was held to be valid and infringed. The court enjoined appellant from making, using or selling the carpet display rack and granted appellees the right to a further hearing to determine damages from the infringement. This had been delayed pending the present disposition.
In 1968 the plaintiffs-appellees Raymond C. Price and Control Sciences, Inc. conceived the idea of a carpet display rack which would display carpet and at the same time would be hidden by the display and, in addition, would fold up for convenient storage and shipping. In his first attempt to obtain a patent Price described a device which had two elongated frame sections, similar in size, which rotated about the pivotal axes and which flattened out to permit easy storage and shipping and which could be moved into a transverse position in which the sections stand in an upright position to form a stable display position with fasteners along the upright portions of the frame capable of supporting samples.
Price made a total of 13 claims originally, all of which were similar to the one which is noted in the footnote. All of these were rejected by the Examiner for obviousness defined in 35 U.S.C. § 103. Price proceeded to amend his claims by clarifying that the samples were to be hung on the outside of the elongated frame sections with supports for the samples intermediate to the sides of the U-shaped channel tubing which was used in the frame. Thereby, the samples would extend throughout substantially all the vertical extent of the structure concealing the frame itself.
The patent was issued on an invention consisting of two frames connected by a permanent pivot which allowed the two frames to close and to flatten out for storage and to readily open out into perpendicular intersecting planes for purposes of displaying sample binders of carpet on hangers or fasteners located on the sides of the frame so that the frame itself was substantially hidden.
The Examiner approved Claims 17, 18 and 19 which are set forth in an appendix to this opinion. Also in the appendix are pictorial reproductions which show the device in some detail. The infringing device also consisted of two intersecting- rectangle frames connected in their middles but which did not rotate in the same manner as the Price Patent described above. The two intersecting rectangles were connected by nuts and bolts together with a removable metal strip at the bottom of the frames secured in an open position perpendicular to one another. The infringing device also contained four removable headers, one located each at the top corners of the two rectangles. These were used for advertising purposes. The headers and the metal strip prevented the intersecting frames from being rotated into a closed position on a single plane. The display hangers were wrapped around the tubing, being secured by the nuts and bolts in the back of the tubing.
As noted, the trial court upheld the patent and ruled that it was infringed.
The contentions on appeal are, first, that the trial court erred in upholding the patent and, second, that the patentable aspects were first disclosed in the amended patent application and thus were made more than one year after the first sale of the invention to the public. Third, it is contended that the patent was not infringed.
In addition to the obviousness contention, the plaintiffs asserted at trial that the patent was lacking in invention. 35 U.S.C. § 102(a). This latter was a major issue at the trial, and the trial judge made a thorough analysis and upheld the patent. The thoroughness may account for the abandonment of the contention on appeal. It was recognized by the trial court that a device may satisfy 35 U.S.C. § 102 with a novel combination of old elements and at the same time not fulfill the requirements of non-obviousness in 35 U.S.C. § 103. This invention admittedly consisted of a combination of old elements and hence the obviousness question pertained to the differences between the defendant’s invention and the prior art, whereby the subject matter in its entirety would have been obvious to a person having ordinary skill in the art to which the subject matter pertains. The tests for determining obviousness are set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). These tests are:
1. The scope and content of the prior art are to be determined.
2. Differences between the prior art and the claims of the patent in suit are to be ascertained.
3. The level of ordinary skill in the pertinent art needs to be resolved.
Having examined this background (pursuant to the John Deere decision), the obviousness or non-obviousness of the subject matter is to be determined. Ascertainment of the scope of the prior art and determination of the difference between the prior art and the claims in suit together with the level of skill in the art are all questions of fact. Whether in the light of these factual matters the patent is obvious then becomes a question of law.
Explicit findings in accordance with these criteria are to be made in every case according to dicta in opinions of the Supreme Court. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 62, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969). It is noteworthy that there is law to the effect that failure of the trial court to make explicit findings in the John Deere categories is fatal. Use of broad conclusionary terms is forbidden in these decisions. See Waldon, Inc. v. Alexander Mfg. Co., 423 F.2d 91 (5th Cir. 1970). See also Van Corp Mfg., Inc. v. Townley Industrial Plastics, Inc., 464 F.2d 16 (5th Cir. 1972). Cf. Antici v. KBH Corp., 324 F.Supp. 236 (N.D.Miss.1971). Other cases have not demanded this strict categorical approach. So long as it is clear that the court has grappled with the problems presented it is accepted. As far as we were able to ascertain, this circuit follows this latter approach. See Black, Sivalls & Bryson, Inc. v. National Tank Company, 445 F.2d 922 (10th Cir. 1971). The leading case for this proposition from our Circuit is Eimco Corporation v. Peterson Filters and Engineering Co., 406 F.2d 431 (10th Cir. 1969). Other circuits also follow this less stringent approach. See Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66 (3d Cir. 1972), cert. denied 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972) and Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314, 322-323 (7th Cir. 1972). In Frantz the district court did not even discuss § 103 or John Deere. Nonetheless, the circuit court held that the district court had implicitly fulfilled the John Deere requirements. The trial court here did not use the “broad conclusionary terms” condemned in the Waldon case. In our view its findings were sufficient to provide the appellate court with a clear understanding of the trial court’s reasons so as to present an adequate review. National Lead Co. v. Western Lead Products Co., 291 F.2d 447 (9th Cir. 1961).
We doubt that the Supreme Court intended that mere failure to use numbered paragraphs for the John Deere findings called for automatic reversal. The trial court in our case did indeed, however, consider carefully the scope and content of the prior art in relation to the patent in suit. While it noted that it was unnecessary to consider the numerous citations of prior art, it nevertheless considered all of the material presented.
In the case at bar the trial court did not limit the scope and content of the prior art. It broadly considered the prior art to include all of the citations brought to its attention by the parties.
Appellant’s further complaint is that the trial court failed to compel plaintiffs-appellees to produce the original of a document, a copy of which had been introduced as an exhibit. The problem stems from the trial court’s reference to the copy which was somewhat illegible and its remark that it might have been the most cogent citation. Appellant says that the court should have compelled production of the original and its failure to do so violated its constitutional rights (due process). We see no error based on the Constitution or other law. The copy reveals sufficient information to allow a ruling as to pertinence of the depiction.
The trial court did not cite each and all items of prior art. It selected for citation the most relevant and it made the requisite comparisons with the claims in dispute. We find no error in this procedure. In holding as the trial court did that the display rack would not have been obvious to a person having ordinary skill in the art, the court was commenting on the basis of its analysis of the prior art. Taking into account the elements and common use and the kinds of things that persons have been creating and utilizing, we see no deficiency in not enunciating a measuring device for evaluation of the pertinent art.
Finally, the court’s conclusion of non-obviousness, in the light of prior art, was rationally reached. The court’s determination that the Price Patent “does not appear to have been a development obvious to a person having ordinary skill in the art” is indeed a conclusory holding, but as we have observed, this issue is more in the nature of a conclusion of law than a finding of fact. We are not then disposed to rule that it is thereby deficient.
The simplicity of this device does suggest to the uninitiated that it is obvious. This is not, however, a reliable test of obviousness. The inquiry tends instead to be whether the new combination of elements reflects something more than mechanical skill. See Oliver United Filters v. Silver, 206 F.2d 658, 663 (10th Cir. 1953) cert. denied 346 U.S. 923, 74 S.Ct. 308, 98 L.Ed. 416 (1953). Perhaps everything seems obvious with the advantage of hindsight. See Erie Technological Products, Inc. v. Diecraft Metal Products, Inc., 461 F.2d 5 (7th Cir. 1972).
Plaintiffs’ invention consists of five essential elements. All but one of these have some manifestation in the cited prior art and yet none of the cited prior art contains the combination of elements which is found in the Price Patent. We must conclude that this combination would not have been obvious to one of ordinary skill in the art so that he could have created from scratch a display rack having the five essential elements of this patent and could have done so in the manner in which it was accomplished by the plaintiffs. While it is possibly obvious to add each of the five elements to a composite of the other four, this would not be obvious to a person of ordinary skill in the art to allow him to successfully put all of the five elements together at one time. It is this synthesis in the Price invention which justifies the conclusion that it is not obvious and that it is thus entitled to be protected.
II.
Was the appellee disqualified for a patent on the basis that his invention was offered, was sold, was on sale or in use in excess of one year prior to the date of the patent application? 35 U. S.C. § 102(b) provides that a person is not entitled to a patent if the invention was on sale or in use for more than a year prior to the date of application in the United States. The time of tender of the amendment creates this problem. Appellee here did not obtain a patent until he offered the amendment to the Patent Office. Because of this he is confronted with the possibility of being barred if the patentability aspect of the invention was first disclosed by an amendment. Such was the holding of the Supreme Court in Muncie Gear Works, Inc. v. Outboard Marine & Mfg. Corp., 315 U.S. 759, 62 S.Ct. 865, 86 L.Ed. 1171 (1942). Appellee Price made the initial application less than a year after the invention went on sale. But the time of the amendment was more than one year after the invention went on sale. Appellant contends that the Muncie Gear ruling is fatal to the plaintiffs’ patent. The Muncie Gear rule recognizes, however, that where the amendment “only makes express what would have been regarded as the equivalent of earlier claims or where it merely incorporates into one claim [that which could] be gathered from the perusual of all, if read together, it [must] be allowed.” Autogiro Company of America v. United States, 384 F.2d 391, 410 (Ct.Cl.1967). If, on the other hand, the amendment is something more than a clarification, Muncie Gear applies. See Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406 (6th Cir. 1964), which says “the question is whether there is anything in the prior disclosures which will support the subsequent claim, or does the claim broaden or change the original invention.” Id. 332 F.2d at 417.
The trial court considered the amendment not to be in conflict with the rule of Muncie Gear. The Examiner reached the same conclusion. The opinion of the Examiner (and that of the court too) is to be given great weight in determining what is “new matter.” See Technicon Instruments Corp. v. Coleman Instruments Corp., 385 F.2d 391 (7th Cir. 1967). The question is, of course, a factual evaluation. To us also the amendment is clarifying in its form and effect rather than new matter.
III.
Does the evidence show that the appellant infringed the patent within the meaning of 35 U.S.C. § 271 which defines infringement as follows: “whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.”
Appellant argues, first, that the device is not infringed, but even if it is the evidence fails to show that appellant committed an act constituting an infringement. The question we consider first is whether the accused device falls within the patent. See Graver Tank and Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950).
As is ordinarily true, the accused device is not exactly like the patented one. One marked difference is that the patented device is pivotally secured in the middle of the two rectangles to allow them to be folded into an open position for display or into a closed position for other purposes. The two rectangular frames in the accused device are secured with nuts and bolts together with the removable strap and removable headers to maintain the open position at all times. And a second difference is that the patent has channels to hold sample binders that are intermediate to the sides of the U-shaped tubing of which the frames are composed, whereas the accused device provides for sample binders with channels which wrap around the tubing of which the frames are composed.
The trial court held that although the accused device was not precisely identical, nevertheless the two devices do the same work in substantially the same way, accomplishing substantially the same result.
In McCullough this court recognized that a patent which constitutes a marked improvement in the art is entitled to a substantial range of equivalents, and every element or its functional equivalent must be found in the accused device in order to have an infringement.
Consistent with McCullough and the other decisions, we agree with the trial court that the presence of the nuts and bolts rather than the pivot does not result in the accused device being outside the range of equivalents. It would seem that since the loosening of the nuts and bolts and the removal of the strap and headers accomplishes the same result as the pivot, the obviousness of this change brings the accused device within the scope of the equivalence doctrine.
The same is true of the method for holding the sample binders. These are also similar and thus within the scope of the equivalence doctrine. The wraparound channels are functionally equivalent to the channels on the patent in suit located intermediate to the sides of the U-shaped tubing.
Whether there is infringement and applicability of equivalents are both factual questions. See Graver Tank and Mfg. Co. v. Linde Air Products Co., supra. The ruling is therefore not to be disturbed unless clearly erroneous. It is not.
Were acts of infringement established? Evidence of appellee to establish acts of infringement was meager. There was evidence that the defendant used the infringing device on its own premises to display carpet. This, however, was stricken. The fact that the trial court nevertheless referred to it is harmless error in view of proof of another act of infringement. The other was sale of an infringing display rack to Montview Interiors, a carpet retailer. Appellant would have us disregard this evidence because it was not brought to his attention by supplementing the appellant’s interrogatory as is required by Rule 26(e). The court received it to prevent manifest injustice.
It is quite true that parties are under a continuing duty to supplement their responses. See 4 J. Moore, Moore’s Federal Practice § 26.81 (1970). Rule 26 clearly requires this. There is no indication, however, that the trial court believed that this failure to amend was a knowing concealment. In any event, it is questionable whether exclusion is the only proper penalty for failing to comply with the requirement. Surely the trial judge has some discretion in selecting the sanctions and it does not appear that the court abused its discretion in this instance.
* * *
In sum, then, it is concluded that the plaintiff had a valid patent; that the defendant infringed that patent; and that the record is free from serious error.
The judgment of the district court is affirmed.
APPENDIX A
The three claims that the Patent Examiner finally approved are as follows:
17. A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat superposed relation for storage and shipping and rotatable to a second substantially transverse position in which the sections are adapted to stand in an upright crossing position, support members disposed in circumferentially spaced arrangement at the base of the crossed upright frame sections for establishing a stable display position for the fixture on a supporting surface, and lengthwise adjustable means at intervals along the upright portions of the frame sections intermediate their sides for supporting sample binders of varying sizes and shapes in a hanging rectangular display at selective elevations with an upper binder covering a portion of the binder next below whereby said rectangular display conceals most of the frame sections.
18. A fixture as defined in Claim 17, in which the binder supporting means are arranged to dispose the hanging binders in substantially rectangular arrangement and' in a position substantially perpendicular to the frame section in which they are supported.
19. A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat superposed relation for storage and shipping and rotatable to a second substantially transverse position in which the sections are adapted to stand in an upright crossing position, support members disposed in circumferentially spaced arrangement at the base of the crossed upright frame sections for establishing a stable display position for the fixture on a supporting surface, and horizontally disposed channels at intervals along the outer faces of the upright portions of the frame sections for supporting sample binders of varying sizes and shapes in a hanging rectangular display extending throughout substantially the vertical extent of the fixture and concealing most of the frame sections.
. The original claim shows the general nature of the device:
A sample display fixture comprising two elongated frame sections of similar size and shape pivotally secured at their opposite ends permitting rotation about the pivotal axis to establish a first position in which the sections are in a substantially flat, superposed relation for storage and shipping and movable to a second substantially transverse position in which the secitions are adapted to stand in an upright position, support members disposed in circumferentially spaced arrangement at the base of the respective upright frame sections for establishing a stable display position for the fixture on a supporting surface, and means at intervals along the upright portions of the frame sections for supporting sample binders of varying sizes and shapes.
. The full text of the trial court’s conaments on the obviousness question is as follows:
B. Obviousness
It is well established that a combination of old elements may be novel within the meaning of 35 U.S.C. § 102 (1970) and yet fail to satisfy the requirement of non-obviousness established by 35 U.S.C. § 103 (1970). See, e. g., Ohio Citizens Trust Company v. Lear Jet Corporation, 403 F.2d 956, 957 (10th Cir. 1968) cert. denied 394 U.S. 960, 89 S.Ct. 1308, 22 L.Ed.2d 561 (1968). The Supreme Court has spoken to the process by which the § 103 obviousness inquiry is to be resolved:
While the ultimate question of patent validity is one of law, . . . the § 103 condition, which is but one of three conditions, each of which must be satisfied, lends itself to several basic factual inquiries. Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined.
Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966) (citation omitted).
Defendant has failed to convince us that the Price patent is obvious in light of the prior art. The Kamenstein patent, No. 1,518,148, is a display rack designed to display merchandise on the inside of the rack, rather than on the outside, as is the case with the Price rack. The Miamo patent, No. 1,322,596, is a book-like display rack with numerous vertical pivotal axes, all of which are attached to stationary, wall-hung brackets. It has no supporting feet and does not teach exterior hangers even remotely similar to the Price hangers. The White patent, No. 410,226, is an easel showing two frame sections, pivotal connections, and supporting' feet. The use to which these elements are put in White, however, lias only the most remote resemblance to their use in the Price patent. The Whitman Candy Rack (Defendant’s Exhibit T), while suitable, apparently, for display of boxed candy and ladies’ purses, discloses nothing in the manner of hangers on the outside of the frame; indeed, decorative fringes on the exterior edges of the shelves would seem to preclude any such hanging of merchandise. While we could continue at great length to discuss the numerous citations of prior art brought to our attention by both parties, no useful end would be served by such a discussion. It will be sufficient simply to state that on the basis of a careful review of the prior art, the Price display rack does not appear to have been a development obvious to a person having ordinary skill in the art. . We find that the Price Patent, No. 3,528,560, is not obvious within the meaning of 35 U.S.C. § 103 (1970).
. Defendant complains in relationship to the consideration of the prior art of the court’s refusal to allow its expert to testify as to the Sugden patent as an example of the prior art, because a copy had not been timely furnished to the plaintiffs. Defendant argues that this was error because such prior notice is not always required by the courts. But the trial court did consider this patent as part of the prior art, and we are unable, in view of the circumstances, to perceive error in the court’s denial of the expert testimony.
. The five essential elements referred to are: (1) intersecting rectangular frames; (2) permanent pivots; (3) samples located on the outnide faces of the frames; (4) sample holders intermediate the sides of the U-shaped tubing; and (5) overlapping samples that substantially hide the supporting frames.
. Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 125, 27 L.Ed. 935 (1878). See McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381 (10th Cir. 1965) cert. denied, 383 U.S. 933, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1965); Bewal, Inc. v. Minnesota Mining and Mfg. Co., 292 F.2d 159 (10th Cir. 1961); King-Seeley Thermos Co. v. Refrigerated Dispensers, Inc., 354 F.2d 533 (10th Cir. 1965).
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_circuit | K | 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.
George S. JONAS, et al., Plaintiffs-Appellants, v. Edward J. STACK, etc., et al., Defendants-Appellees.
No. 83-5390.
United States Court of Appeals, Eleventh Circuit.
April 19, 1985.
Green, Eisenberg & Cohen, James K. Green, West Palm Beach, Fla., David M. Lipman, Miami, Fla., for plaintiff’s attorney Andrew Mavrides.
Price & Bryne, Alexander Cocalis, Chief Trial Counsel, Fort Lauderdale, Fla., for defendants-appellees.
Before TJOFLAT and VANCE, Circuit Judges, and ATKINS , District Judge.
Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of Florida, sitting by designation.
VANCE, Circuit Judge:
This appeal requires us to determine whether an attorney who successfully prosecutes another attorney’s application for fees under the Civil Rights Attorneys’ Fees Awards Act (Act), 42 U.S.C. § 1988, may thereupon request compensation for his own services under the same statute. Although we conclude that such representation constitutes a service which may be compensable within the meaning of the Act, we also conclude that the award may be made only to counsel who actually represented the prevailing party. Accordingly, we dismiss this appeal because it and the fee request in the lower court were brought by fee counsel rather than counsel to the prevailing parties.
In April 1976, a Florida district court appointed Mr. Andrew Mavrides to represent the inmates of the Broward County Jail in their civil rights suit concerning confinement conditions. After six years of litigation, Mavrides filed a motion for $252,255.35 in attorney’s fees and costs pursuant to 42 U.S.C. § 1988. The motion was accompanied by the required supporting memorandum and a detailed breakdown of Mavrides’ costs, expenses and time. The defendants filed a motion in response, acknowledging that Mavrides was entitled to some compensation but contending that the amount should be only $29,430 in fees and $90.80 in costs. The defendants also requested that the court hold an evidentiary hearing on the fee issue. Mavrides apparently concluded that he was unable to represent himself adequately in the face of this opposition, and without consulting the court hired Mr. James Green to prosecute his fee application. As a result of Green’s representation, Mavrides was awarded $89,850 in fees and $2,936.80 in costs. Later, Green filed a § 1988 fee application, purportedly in Mavrides’ name, seeking compensation for his services in representing Mavrides. The district court denied Green’s application with the following order:
THIS CAUSE having come before the Court on the motion of James K. Green for Attorney’s fees, and the Court having considered the record in this cause and being otherwise advised in the premises, ' it is
ORDERED AND ADJUDGED that said motion be, and it is hereby, DENIED. Mr. Green did not represent the plaintiff class but rather represented Mr. Mavrides.
Green, who now has hired a third lawyer to prosecute his claim, then filed an appeal in his own name asking us to reverse the district court’s order and to remand for appropriate proceedings to determine his reasonable fees and expenses.
This court has held that a prevailing party’s counsel is entitled to reasonable compensation when he litigates his own claim for entitlement to § 1988 fees. E.g., Johnson v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1207 (11th Cir.1983); Johnson v. Mississippi, 606 F.2d 635, 637-39 (5th Cir. 1979). Mavrides, would, therefore, be entitled to reasonable compensation for all time reasonably spent had he litigated his own fee application. He chose, however, to hire Green to press his claim after it became clear that the defendants intended to oppose his application. The threshold issue is whether such representation constitutes a compensable service within the meaning of the Act. We join a number of other courts in concluding that it does. See Shadis v. Beal, 703 F.2d 71, 72-73 (3d Cir.1983); Grendel’s Den, Inc. v. Larkin, 582 F.Supp. 1220, 1231 (D.Mass.1984); Institutionalized Juveniles v. Secretary of Pub. Welfare, 568 F.Supp. 1020, 1034 (E.D. Pa.1983),
We are guided to this conclusion by an examination of the policy considerations underlying the Act. The Act’s primary function is to shift the costs of civil rights litigation from civil rights victims to civil rights violators. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1189 (11th Cir. 1983). Its legislative history articulates two justifications for the cost-shifting mechanism. First, the mechanism affords civil rights victims effective access to the courts by making it financially feasible for them to challenge civil rights violations. Second, it provides an incentive for both citizens and members of the bar to act as “private attorneys general” to ensure effective enforcement of the civil rights laws. Id. (citing H.R.Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976) and S.Rep. No. 1011, 94th Cong., 2d Sess. 1, 3 reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910).
We have recognized that the Act’s success in achieving its purposes depends on whether the cost-shifting mechanism reimburses costs and fees on a par with what the attorney would otherwise receive from fee-paying clients. Dowdell, 698 F.2d at 1190. Were we to institute an absolute ban on recovery for expenses incurred by a lawyer who finds it necessary to hire counsel to prosecute his fee application, the profitability of handling civil rights cases would be reduced, since he would then have to absorb an expense not generally associated with other types of litigation. If Green’s services were not compensable in this case, for example, Mavrides would have to pay Green’s fee out of his own pocket and his real income for handling the case would be reduced significantly. Such reduced profitability would in turn channel lawyers away from civil rights suits towards more remunerative types of litigation, thereby diminishing the enforcement of the civil rights laws and decreasing victims’ opportunity to gain redress. Id. Given this result, we find it more consistent with the goals of the Act to permit an attorney to be compensated for the costs reasonably incurred in hiring another to prosecute his fee application.
In reaching this conclusion we do not mean to imply that it is appropriate in every case for an attorney to hire counsel to prosecute his § 1988 fee application. On the contrary, we envision these cases to be the exception and not the rule. The propriety of passing any litigation costs on to the defendant under § 1988 remains subject to this circuit’s requirement that the costs be justified by the necessities of the case. Dowdell, 698 F.2d at 1191. Whether fee counsel’s services are justified in a particular instance remains within the sound discretion of the trial court.
We now turn our consideration to the issue of whether Green had standing to file the petition for attorney’s fees. He and his counsel are strangers to the litigation in the sense that they are neither parties nor attorneys of record for any party. The Act calls for awards to be made to a “prevailing party.” We can find nothing in the Act or its legislative history which suggests that Congress contemplated that an attorney who did not actually represent the prevailing party would be able to file a fee application on his own motion. We do not believe, therefore, that the meaning of the term “prevailing party” as it is used in the Act can be expanded to encompass an attorney who has no connection with the principal case aside from his prosecution of the fee issue. The proper procedure is for the attorney who benefits from the representation to supplement his own fee application to include the costs and expenses that he has incurred by retaining fee counsel. In this case, then, Mavrides is the proper individual to request compensation for Green’s expenses. We dismiss this appeal in light of Mr. Green’s lack of standing to file the motion for fees in the district court or to file an appeal to this court.
DISMISSED.
. The case had not reached final judgment at the time Mavrides filed his motion, but the court had entered numerous orders in the plaintiffs’ favor and had ruled for them on the basic issue of whether conditions in the jail met constitutional standards at the time of filing and during the pendency of the lawsuit.
. The accompanying memorandum dealt with the twelve factors of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), which must be considered in all fee cases in this circuit.
. The validity and amount of the award to Mavrides are not challenged.
. Green also asks us to require the district court to determine an appropriate award of fees and expenses for his lawyer on this appeal.
. We express no opinion as to whether Mavrides acted properly in hiring Green to represent him on the fee application. This determination is one properly left in the first instance to the trial court.
. Those attorneys who feel the need to hire counsel would be well-advised to raise the issue with the court prior to taking such action. Otherwise they run the risk that the trial court may determine that the necessities of the case did not justify retaining special fee counsel. We are unwilling, however, to make prior consultation with and approval by the trial court a prerequisite to recovery.
. Strict conformity to the language of the statute would require that the application be made by the attorney in the name of his client, the prevailing party. We consider this to be the procedure of choice, since it ensures that awards made under the Act compensate their intended beneficiaries. We are aware that in some instances courts have awarded attorney's fees to an individual attorney rather than to the prevailing party. See, e.g., Shadis v. Beal, 692 F.2d 924 (3rd Cir.1982); cf. Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir.1980). In these cases, however, the awarded fees compensated the attorney for services rendered directly to the prevailing party.
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_decisiontype | E | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
CALIFORNIA v. TEXAS
No. 76,
Orig.
Argued March 29, 1978
Decided June 22, 1978
Jerome B. Falk, Jr., argued the cause for plaintiff. With him on the briefs were Myron Siedorf, James R. Bimberg, and Steven L. Mayer.
John L. Hill, Attorney General of Texas, argued the cause for defendant. With him on the brief were David M. Kendall, First Assistant Attorney General, Lee C. Clyburn, Administrative Assistant Attorney General, Rick Harrison, Special Assistant Attorney General, and David Deaderick and Rick Arnett, Assistant Attorneys General.
Per Curiam.
The motion for leave to file a bill of complaint is denied.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer: |
songer_direct1 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. 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.
UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Ray FRAKES, Defendant-Appellant.
No. 76-2650.
United States Court of Appeals, Sixth Circuit.
Submitted June 20, 1977.
Decided Oct. 18, 1977.
Kurt A. Phillips, Fort Thomas, Ky. (Court-appointed — CJA), for defendant-appellant.
Albert Jones, U. S. Atty.,- James H. Barr, Louisville, Ky., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, WEICK and ENGEL, Circuit Judges.
PER CURIAM.
Defendant-appellant stands convicted by a jury on two counts of interstate transportation of stolen goods having a value of $5000 or more, in violation of 18 U.S.C. § 2314 (1970). We affirm.
The proofs at trial indicated that on September 15, 1975, appellant acquired possession of a used John Deere tractor from a Tennessee firm by passing a $16,500 check drawn on an account with insufficient funds. According to a statement given to the FBI by the appellant, the tractor was subsequently transported across state lines into Arkansas.
On September 22, 1975, the appellant bought another tractor, an International Harvester, from a firm in Mayfield, Kentucky. The purchase was made with an $18,000 check, again drawn on account with insufficient funds. This tractor was recovered on September 25 from an auction company in Missouri, where the appellant had left it with instructions to sell it for $15,500 or $16,500.
With respect to both purchases, the circumstances proven at trial established that the appellant intended to take possession of the tractors without paying for them.
Appellant raises a number of issues on appeal, although we find only one to be sufficiently substantial to merit discussion. Specifically, the appellant claims that § 2314, the National Stolen Property Act, does not penalize the interstate transportation of an object acquired in exchange for an insufficient funds check.
The statute provides:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud .
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 2314 (1970).
Similarly, the Dyer Act, 18 U.S.C. § 2312 (1970), states:
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
While the precise issue of this case is a matter of first impression, we conclude that the Supreme Court’s construction of the Dyer Act is controlling. In United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957), the Court faced a split among the circuits as to the meaning to be accorded the word “stolen” in the Dyer Act. Three circuits were of the opinion that “stolen” meant the acquisition of property by means which would be punishable at common law as larceny. Three other circuits interpreted “stolen” in a more generic way, not limiting the concept to the crime of larceny. The Supreme Court adopted the latter view, concluding that “ ‘[sjtolen’ as used in 18 U.S.C. § 2312 includes all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes common-law larceny.” 352 U.S. at 417, 77 S.Ct. at 402.
The Court further noted, in language which is especially pertinent to the facts of this case:
[A]n automobile is no less “stolen” because it is rented, transported interstate, and sold without the permission of the owner (embezzlement). The same is true where an automobile is purchased with a worthless check, transported interstate, and sold (false pretenses).
352 U.S. at 416, 77 S.Ct. at 402 (emphasis added).
Relying on the authority of Turley, supra, then Circuit Judge Stewart noted for our court:
The issue as to whether the goods were obtained by one of the unlawful methods of acquisition referred to in [the National Stolen Property Act] is not to be decided upon the basis of technical common law definitions.
Bergman v. United States, 253 F.2d 933, 935 (6th Cir. 1958). We consequently decline appellant’s invitation to follow common law notions in construing the Act.
We accord the same meaning to the word “stolen” in the National Stolen Property Act as in the Dyer Act. United States v. McClain, 545 F.2d 988, 994-95 (5th Cir. 1977); Lyda v. United States, 279 F.2d 461, 463-65 (5th Cir. 1960); see Turley, supra, 352 U.S. at 412 & n. 9, 77 S.Ct. 397. We therefore hold that § 2314 embraces the conduct of appellant in acquiring title to the tractors by means of checks drawn on insufficient funds.
We find support for our conclusion in the fact that the National Stolen Property Act and the Dyer Act are part of an overall legislative scheme designed to thwart the misuse of interstate commerce. As the Fifth Circuit noted in Lyda, supra, 279 F.2d at 464:
The aim of [the National Stolen Property Act] is, of course, to prohibit the use of interstate transportation facilities for goods having certain unlawful qualities. This reflects a congressional purpose to reach all ways by which an owner is wrongfully deprived of the use or benefits of the use of his property. It was one way to meet the difficulties in legislative draftsmanship. The experience with this Act, the Dyer Act, and others bears witness that “what has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches.” Morissette v. United States, 1952, 342 U.S. 246, at page 271, 72 S.Ct. 240, at page 254, 96 L.Ed. 288, at pages 304-305. Congress by the use of broad terms was trying to make clear that if a person was deprived of his property by unlawful means amounting to a forcible taking or a taking without his permission, by false pretense, by fraud, swindling, or by a conversion by one rightfully in possession, the subsequent transportation of such goods in interstate commerce was prohibited as a crime.
See also Turley, supra, 352 U.S. at 413-17, 77 S.Ct. 397.
Affirmed.
See Boone v. United States, 235 F.2d 939 (C.A. 4th Cir. 1956); Murphy v. United States, 206 F.2d 571 (C.A. 5th Cir. 1953); Ackerson v. United States, 185 F.2d 485 (C.A. 8th Cir. 1950); Hite v. United States, 168 F.2d 973 (C.A. 10th Cir. 1948). In each of these cases the defendant obtained possession of a car by passing a bad check, falsely representing that it would be paid.
. As support for its construction of “stolen” in the Dyer Act, Turley cited with approval two cases which gave a similarly broad reading to the word “stolen” in the National Stolen Property Act: United States v. Handler, 142 F.2d 351, 353 (2d Cir. 1944), cert. denied, 323 U.S. 741, 65 S.Ct. 40, 89 L.Ed. 594 (1945); Crabb v. Zerbst, 99 F.2d 562, 565 (5th Cir. 1939).
. We thus need not decide whether the appellant’s conduct falls within the other methods of acquisition condemned by § 2314: “converted or taken by fraud.” Lyda, supra, 279 F.2d at 464-65; see generally United States v. Vicars, 465 F.2d 720 (6th Cir. 1972).
. E.g., 18 U.S.C. § 2316 (1970), (interstate transportation of stolen cattle) construed, Cummings v. United States, 289 F.2d 904 (10th Cir.), cert. denied, 368 U.S. 850, 82 S.Ct. 83, 7 L.Ed.2d 48 (1961). Cummings held that § 2316 condemned the interstate transportation of cattle acquired with an insufficient funds check.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
Harold Lorne CHEROT, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation, Central Surety & Insurance Corporation and Orville Lester Carter, Appellees.
No. 5972.
United States Court of Appeals Tenth Circuit.
Feb. 26, 1959.
Rehearing Denied March 24, 1959.
Bryan Tabor, Tulsa, Okl. (Rucker, Tabor & Cox, Joseph A. Sharp, Joseph F. Glass, Tulsa, Okl., on the brief), for appellant.
Alfred B. Knight, Tulsa, Okl., for appellee, U. S. Fidelity & Guaranty Co.
Thomas R. Brett, Tulsa, Okl. (Robert D. Hudson, Tulsa, Okl., on the brief), for appellee, Central Surety Co.
Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.
HUXMAN, Circuit Judge.
This was a declaratory judgment action in which the two appellee insurance companies sought and obtained a declaratory judgment, declaring that they were not required to defend a damage action instituted by Harold Lome Cherot against Orville Lester Carter arising out of an automobile accident under policies of insurance which they had issued. It was the companies’ claim that there was no liability because of an exclusionary clause in each policy. USF&G Company had issued its policy to Howard F. Schultz on the Auburn automobile involved in the collision, and Central Surety Insurance Company had issued its policy to Orville Lester Carter. They were both conventional liability insurance policies. Schultz owned a 1932 Auburn automobile which he left with Carter for repair. While the car was being driven by Carter, it was involved in an accident in which Cherot was injured.
The USF&G policy provided that it should not apply “to an owned automobile while used in the automobile business.” The Central policy excluded coverage of “a non-owned automobile while used (1) in the automobile business by the insured.” The Central policy also contained this provision. “Automobile business means the business of selling, re-' pairing, servicing, storing or parking of automobiles.”
Appellee insurance companies contended successfully in the trial court that the automobile was being used in the automobile business by Carter at the time of the accident, and that, therefore, there was no liability against either of them because of the above exclusionary clauses.
There was no oral testimony in the trial court. The case was submitted on statements at the pretrial conference and on the depositions of Howard Schultz and Orville Lester Carter. In the absence of oral testimony in the trial court, findings of fact by that court do not carry the same weight on appeal as they do when oral testimony is heard. In that posture of the ease, an appellate court is equally capable with the trial court of examining evidence and drawing conclusions therefrom. Nonetheless we are loath to overturn the findings of an experienced trial judge unless, in our opinion, they are clearly erroneous.
What constitutes doing business is a question of law. Whether one is engaged in business under the definition is a question of fact. The books are replete with definitions defining business or what constitutes doing business. In Kelley v. United States, 10 Cir., 202 F.2d 838, 841, we defined business as follows:
“ ‘Business’ is a comprehensive term. It has been defined as that which ‘occupies the time, attention and labor of men for the purpose of a livelihood or profit.’ ”
In Gray v. Board of County Commissioners of Sedgwick County, 101 Kan. 195, 165 P. 867, 868, L.R.A.1918F, 182, the Kansas Court said that:
“ ‘Business’ has been held to be synonymous with ‘calling,’ ‘occupation,’ or ‘trade,’ and defined as ‘any particular occupation or employment engaged in for a livelihood or gain.’ ”
Throughout these cases and numerous others runs the idea of effort occupying a substantial part of one’s efforts or time carried on for the purpose of profit or gain.
Thus considered, we are of the view that the evidence fails to sustain the court’s finding that the insured automobile was being used by Carter in the automobile business within the meaning of the exclusionary clauses of these two policies. Carter and Schultz were both employed as full-time employees for the Reda Pump Company. Carter was a mechanic and Schultz was sales manager. Prior to his employment by Reda Pump Company, Carter had worked as a garage mechanic. He enjoyed working on cars and did so as an “accommodation” to his friends and as a “hobby.” At his home he had some manual and mechanical hand tools, a floor jack, and a two-car garage. At one time he had considered going into the car repair business and had forms printed with the heading “Red’s Service Garage.” During this period, he did some work for some commercial concerns and charged for both labor and material. Carter testified that some nine months before this transaction he quit his attempt to organize a repair business and quit charging for work because he wasn’t making any money.
Schultz had purchased this antique Auburn and had asked Carter to help him restore it to running condition. The car was delivered to Carter in 1956, but was returned to Schultz. It was redelivered to Carter in May or June, 1957, and remained in his possession until the time of the accident on October 13, 1957. Carter and Schultz worked together on the car outside their regular office hours. Carter estimated that he put in about thirty hours and Schultz about half that much time. Carter testified, and his testimony in this respect is uncontradicted, that he did not intend to charge Schultz for labor. Schultz testified that he intended to pay Carter for labor but admitted that mention had never been made of any charge other than for actual expenses. After Carter abandoned his idea of engaging in the automobile repair business for profit, he continued to use the forms headed “Red’s Service Garage” to keep track of expenditures on various cars he was working on. Schultz advanced Carter $60 to be used for “actual out of pocket expenses,” as testified to by Carter. About the time the automobile was completed, Carter gave Schultz a written statement on stationery headed “Red’s Service Garage” showing in itemized form how the $60 had been spent. It showed that $49.68 had been expended for parts. The form contained a column for listing various charges, such as parts and labor. The statement given Schultz contained this notation.
“Parts $49.68
Labor -(Left Blank)
Total -(Left Blank)”
Carter testified that in addition to the charge for the parts there would be some slight charge for the use of electricity. He said they had used quite a bit of electricity and room in the garage. Carter testified that, “I couldn’t have parked my car in there, we would probably have settled on a few dollars above, — for working on it.”
Certainly, so far as the transaction is concerned, his testimony that there was no charge for labor stands uncontradicted. While there was testimony that he worked on a number of cars each month at his home, the testimony is that he did this as a hobby for his friends and made no charge for his labor and that most of these services were of a minor nature. It is significant that not a single instance is established where he charged for labor during the nine months preceding the accident. He also testified that he did not include in his income tax return any item for labor from his car operations.
We are dealing here with an exclusionary clause. Such provisions are strictly construed. These policies were prepared by the insurance companies. In the absence of a clear showing therein to the contrary, it must be assumed that the word automobile “business” as used in the exclusionary clause means business in the ordinary accepted sense — that is an undertaking engaged in with some regularity and for profit and income.
Carter’s testimony that he abandoned his attempt to establish an automobile repair business stands uncontroverted by any direct testimony, as does his testimony that tinkering with cars for his friends was a hobby with him for which he made no charge for labor.
Reversed.
. Blackner v. McDermott, 10 Cir., 176 F.2d 498, and eases there cited.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_procedur | 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 rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Thomas A. JOHNSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 843, Docket 92-6231.
United States Court of Appeals, Second Circuit.
Submitted Feb. 25, 1993.
Decided March 31, 1993.
Thomas A. Johnson, pro se.
James A. Bruton, Acting Asst. Atty. Gen., Dept, of Justice, Tax Div., Washington, DC (Gary R. Allen, William S. Esta-brook, Billie L. Crowe, Philip H. Karter, Attys., Dept, of Justice, Tax Div., Washington, DC, Albert S. Dabrowski, U.S. Atty. for D. Conn., New Haven, CT, H. Gordon Hall, Asst. U.S. Atty., of counsel), for defendant-appellee.
Before: LUMBARD, McLAUGHLIN, Circuit Judges, and DUFFY, District Judge.
Hon. Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.
LUMBARD, Circuit Judge:
Thomas A. Johnson, pro se, appeals from an order of the District Court of Connecticut, Dorsey, J, granting the government’s motion for summary judgment in his action to quiet title to his property by removing a tax lien. Johnson contends that this ruling was in error because the IRS assessed the tax which formed the basis of the lien before his time for filing an appeal expired. We agree and reverse.
On August 2, 1990, the Tax Court, Wright, /., determined that Johnson was liable for income tax deficiencies for the taxable years 1980 through 1984. On September 24, 1990, 53 days after this ruling, the IRS assessed Johnson for these deficiencies, and on July 9, 1991, the IRS filed a tax lien on Johnson’s real and personal property in the amount of $347,364.33.
Johnson brought this suit, pursuant to 28 U.S.C. § 2410(a) (1988), to quiet title to his property, claiming that the lien was invalid because the IRS assessed the deficiency prior to the Tax Court’s decision becoming final, in violation of 26 U.S.C. § 6213(a) (1988). Thereafter, the IRS reassessed Johnson’s tax deficiency for 1984, but not for 1980 to 1983 because the statute of limitations for supplemental, assessments had expired.
Both parties moved for summary judgment on the issue of the validity of an assessment made before expiration of the 90-day period for filing an appeal provided in 26 U.S.C. § 6213(a). By order dated August 17, 1992, Judge Dorsey upheld the assessment, concluding that a tax assessment cannot be stayed during the appeal period unless the taxpayer files a notice of appeal and an appellate bond as provided by 26 U.S.C. § 7485 (1988). Because an assessment made during the unexpired appeal period is void, we reverse.
A. Jurisdiction
Initially, we find that the district court had subject matter jurisdiction over this case because 28 U.S.C. § 2410(a) waives the sovereign immunity of the United States. Section 2410(a) states that the United States may be named as a party in “any civil action ... to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien.” When a federal tax lien is involved, however, an action pursuant to § 2410(a) will not lie if its sole purpose is to challenge the validity of the underlying assessment. See Falik v. United States, 343 F.2d 38, 41 (2d Cir.1965).
An exception to this restriction permits a party to challenge procedural irregularities in the assessment process by way of § 2410(a). In Kulawy v. United States, 917 F.2d 729, 733 (2d Cir.1990), we held that § 2410(a) permitted the taxpayer to “challenge procedural irregularities in the seizure and sale of his property following such an assessment.” As the Tenth Circuit explained, the scope of this exception includes “procedural violations arising from assessment, levy, and seizure.” Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir.1992).
Because Johnson’s claim is procedural in nature, it falls within this exception. A procedural claim is one which does not challenge “the existence or extent of substantive tax liability.” Guthrie, 970 F.2d at 736. Applying this standard, the Guthrie court held that the alleged failure of the IRS to assess the tax properly or to send valid notices of assessment were procedural defects cognizable in a quiet title suit. Id. at 737. See also Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990) (failure to send valid notice of assessment is procedural); Brewer v. United States, 764 F.Supp. 309, 314 (S.D.N.Y.1991) (§ 2410(a) may be used to challenge the procedures used in making the assessment). Here, Johnson’s claim is procedural because he disputes the timing of the assessment, not its amount.
B. Validity of the Assessment
We find that the assessment was invalid because it was made before the Tax Court’s decision became final. Section 6213(a) provides that “no assessment of a deficiency ... shall be made ... until the decision of the Tax Court has become final.” 26 U.S.C. § 6213(a). A decision becomes final upon expiration of the 90-day period allowed for filing a notice of appeal. See 26 U.S.C. § 7481(a)(1) (1988). In this case, the tax was assessed 53 days after the Tax Court’s decision, well before the period for filing a notice of appeal expired.
In concluding that the assessment was valid, the district court relied on 26 U.S.C. § 7485, which provides:
Notwithstanding any provision of law imposing restrictions on the assessment and collection of deficiencies, the review under section 7483 shall not operate as a stay of assessment or collection ... unless a notice of appeal in respect of such portion is duly filed ... and then only if the taxpayer ... has filed with the Tax Court a bond....
The court interpreted this provision as requiring a taxpayer to file a notice of appeal and to post a bond before an assessment would be stayed.
As the government now concedes, this reliance is misplaced. Thus, we conclude that the assessment is void because it was made during the unexpired period for filing a notice of appeal. Section 7485 establishes the circumstances under which appellate review of a Tax Court decision stays an assessment. In seeking such review, the taxpayer must file a timely notice of appeal. See 26 U.S.C. § 7483 (1988). Since Johnson did not file a notice of appeal, there is no appellate review, and § 7485 does not apply.
We also reject the government’s argument that the assessment becomes valid upon the expiration of the appeal period. The assessment violated § 6213(a), and we decline to “give the Commissioner an arbitrary power which it was not intended he should have,” United States v. Yellow Cab Co., 90 F.2d 699, 701 (7th Cir.1937), by validating the assessment. This view is consistent with United States v. Walker, 217 F.Supp. 888, 892 (W.D.S.C.1963), in which the court held an identical assessment, i.e. one made within the appeal period, “null, void and of no force and effect.” See also Philadelphia & Reading Corp. v. United States, 944 F.2d 1063, 1072 (3d Cir.1991) (assessment was void because deficiency notices were not issued); Ventura Consol. Oil Fields v. Rogan, 86 F.2d 149, 153 (9th Cir.1936) (assessment during the period for petitioning the Board of Tax Appeals (now the Tax Court) was illegal and given no effect), cert. denied, 300 U.S. 672, 57 S.Ct. 610, 81 L.Ed. 878 (1937); Yellow Cab Co., 90 F.2d at 701 (assessment while petition was pending before the Board of Tax Appeals was void).
Reversed.
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: |